R. L. Stonei 1 Charlotte, NC

ARBITRATION OPINION AND AWARD NCS 9535D

BEFORE

ROBERT B . MOBERLY, ARBITRATOR

IN THE CLATTER OF THE ARBITRATION )BETWEEN )

)

UNITED STATES POSTAL SERVICE )Charlo tte, N .C. )

Employer ) Re : REGULAR ARBITRATIONNC-S-9535-DR .L . Stone

) Charlotte N .Cand , .

NATIONAL ASSOCIATION OF LETTER )CARRIERS, AFL-CIO )

Union )

APPEARANCES

For. the Employer : John Ii . Janson, Sectional Center Director,Employee and Labor Relations .

For the Union : Earl Ritterpusch, President, Branch 545 .

The arbitration hearing in this matter was held on Monday,

January 9, .1973, in Charlotte, North Carolina, at which time all

parties were present and given full opportunity to present evidence

and arguments . The proceedings were transcribed, and both parties

submitted post-hearing briefs .

ISSUES

Was the Grievant, Robert L . Stone, discharged without just

cause? If so, what should be the remedy?

PERTINENT CONTRACT PROVISIONS

ARTICLE XVIDISCIPLINE PROCEDURE

In the administration of this Article, a basic principle shall bethat discipline should be corrective in nature, rather than punitive .No employee may be disciplined or discharged except for just causesuch as, but not limited to, insubordination, pilferage, intoxica-tion (drugs or alcohol), incompetence, failure to perform work asrequested, violation of the terms of this Agreement, or failure toobserve safety rules and regulations . Any such discipline or dis-charge shall he subiect to the grievance-arbitration procedureprovided for in this Agreement, which could result in reinstatementand restitution, including back pay .

ARTICLE XXXVALCOHOL AND DRUG RECOVERY PROGRAMS

Section 1 . The Employer and the Unions express strong support forprograms of self-help . The parties will meet at the national levelat least once every 6 months to discuss existing and new programs .This program of labor-management cooperation shall look to therevitalization of the PAR Program, and continuation of expandingthe coverage of the PAR Program at a rate no less than under the1973 Agreement .

An employee's voluntary participation in such programs will beconsidered favorably in disciplinary action proceedings .Section 2 . In offices having PAR Programs the status and progressof the program, including improving methods for identifyingalcoholism at its early stages and encouraging employees to obtaintreatment without delay, will be proper agenda items for discussionat the local regularly scheduled Joint Labor-Management Committeemeetings as provided for in Article XVII, Section 5, Such dis-cussion shall not breach the confidentiality of PAR participants .

I

FACTS

On September 29, 1977, the Grievant Robert L . Stone, a letter

carrier, urns discharged for "continued failure to meet the require-

ments" of his position . During the period August 3, 1976, through

.July 27, 1977, he was not available for duty as scheduled on ten

different occasions, totaling 343 hours . Illnesses and emergencies

were claimed as the reasons for his absences .

Prior to terminating Grievant, the Postal Service administered

progressive discipline in the form of letters of warning, suspen-

sions and two proposed terminations concerning the failure of

Grievant to meet the requirements of his position . The first

proposed termination was cancelled when the parties and Grievant

signed a "last chance" agreement on January 10, 1 .977 . For about

six weeks thereafter, Grievant's attendance record improved .

However, he then missed 16 hours in February, claiming t,emergency,

and 31 hours in March, claiming sickness .

In April, 1977, the Postal Service and the Union became aware

that Grievant's real problem was alcoholism . Grievant was absent

from April 6 through April 23, 1977 . However, on April 19, 1977,

Grievant, his wife, and his Union representative attended a

meeting with Mr . Charles Lowery, the Coordinator of the Program

for Alcoholic Recovery (PAR) for the Charlotte Sectional Center .Y

The PAR Program for this center had been started on March 1, 1977 .

All in attendance at the April 19 meeting agreed that Grievant was

having problems with alcohol . On April 26, the Postal Service wrote

a letter to Grievant proposing his removal due to his unavailability .

:1

On May 5, 1978, Grievant signed ;, sheet of paper (hereinafter

referred to as Employee Exhibit 4) authorizing the PAR to provide

his supervisor with information concerning his participation in

the program .

Exhibit 4 also contains the following written information

which was placed on it by Mr . Lowery one or two days after the

flay 5 agreement :

"Prescribed Program for Plr . Stone :A . Two (2) meetings of AA (Alcoholics

Anonymous pr . week .B . Contact my office at least 4 or S

times pr . week .C . Attend PAR meeting each Thursday

night .ll . Come by office anytime there is a

need ."

However, Grievant did not receive a copy of the above infor-

mation, nor did lie ever receive such al. proscribed program in

writing . As will he noted later, there is a conflict in the

testimony of Gricvant,and Mr . Lowery as to whether Grievant was

told verbally that these items, especially the attendance at AA

meetings, were mandatory .

On May 17, 1977, the Postal Service and the Union, with the

concurrence of Grievant, entered into a "Settlement Agreement" in

which it was agreed in pertinent part that the April 26 notice of

removal )vould be cancelled to allow Grievant to participate in

the PAR program to correct his problem ; that regular attendance

would be mandatory until his problem is corrected ; and that the

Grievant would be subject to immediate termination if there was

a recurrance of a similar condition .

Prom ?lay 17 through July 7, 1')77, Grievant's attendance

record was good . However, Grievant's wife left him around the

first week of,July, 1977, and Grievant missed three days of work

between July 7 and July 11 . On July 11, in a meeting between

Postal Service and Union representatives, the employer took the

position that if the Grievant returned to work by Friday, July 15,

1977, no action would be taken . During this period, Mr . Lowery

and the Union representative visited Grievant's home to determine

the problem . Grievant was in a home that was almost empty because

his wife had taken the furniture . According to Mr . Lowery, they

found Gricvant in a depressed state and showing the strains of

alcohol abuse . With the assistance of the Union representative,

Grievant entered the detoxification unit of a hospital and stayed

there about a week . lie then entered a Veteran's Hospital in

Salisbury, North Carolina, where he agreed to participate in a

treatment and rehabilitation plan in an alcohol ward . He stayed

there for about 21 days and was released on August 17, 1977 .

On--July 29, 1977, the Postal Service issued a "Notice of

Charges--Removal" to Grievant for "continued failure to meet the

requirements" of his position . A meeting was held on September 9

on such notice, during which Grievant disparaged the benefits of

AA participation . On September 19, 1977, the Postal Service

issued a letter of decision to remove Grievant from the PostalV

Service , effective September 29, 1977 . Grievant filed a grievance

which has keen denied at all steps . At Step 2A , the grievance was

denied with the following statement : "This employee has had at

least two opportunities to correct hfis absenteeism record due

1

to ;,IcohoII lie has not actively participated in the Program

.(1'AR, AA) . At Step 2111 the grievance was denied because "INlr . Stone

did not meet the requirements of a prior settlement "agreement

referencing his participation in the PAR Program, and as a result,

he also failed to meet the requirements of his position ."

Grievant's attendance was satisfactory from the time of his

release from the VA hospital to the date of his discharge, a

period of about 42 days . Grievant contends that he has maintained

his sobriety since lie entered the detoxification unit on July 17,

1977 .

Further facts will be stated in the opinion .

POSITION OF TILE POSTAL SERVICE

In its summation, the Postal Service points out that over the

last' three years, Grievant has been a constant problem in regard

to his unavailability for work and his failure to meet the require-

ments of his position . The employee has been given numerous

opportunities to correct his problem, and on such occasions there

is an improvement for a few weeks only to be followed by a deter-

ioration . The Postal Service argues that Grievant has had ample

time to correct his problem, but to this date he has yet to

identify his problem . The employer notes that Grievant's claimed

church attendance was only for a short interval of time, and that

the Grievant's attendance at the outpatient program at the VA

hospital, as well as at AA and PAR meetings, was inadequate . The

Postal Service argues that his credibility concerning sobriety

should carry little weight , and that a reinstatement of Grievant

could be damaging to the PAR program .

POSITION OP THE UNION

In its summation, the Union states as follows :

"Since early 1977 when Mr . Stone entered PAR andhis problem was diagnosed as alcoholism, hisapproach has been of a positive nature . fie hasretained his sobriety since entering Detox on.July 1 4 , 1977 . Prior to and following histreatment, he was doing a commendable job asattested to by his supervisors . Therefore, theaction taken to remove Mr . Stone from the PostalService was punitive rather than corrective andnot for just cause , w ich violates Article XVIof the National Agreement between the U .S .Postal Service and the National Association ofLetter Carriers . Furthermore, the actionviolates the intent of Article XXXV, Programfor Alcoholic Recovery . We therefore ask thatMr . Stone be returned to his former positionof City Carrier, Level 5, Step 12, with allbenefits such as leave, salary increases,seniority and back pay ."

DISCUSS ION

The record establishes that Grievant is an alcoholic, and that

this condition has significantly impaired his work attendance .

Also, the record establishes that Grievant has not fully recognized

that he suffers from alcoholism, as is evidenced by his failure to

fully participate in the AA program and his poor record of par-

ticipation in the alcoholism outpatient program of the Veteran's

Hospita 1 .

However, these conclusions do not fully resolve the problem .

The Postal Service recognizes that alcoholism is "a highly complex

illness" and a "chronic disease" (see Regional instructions on

"Problem Drinking and Alcoholism," March 6, 1975) . See also an1excellent discussion of the problem of alcoholism which took place

at the 1975 meeting of the National Academy of Arbitrators, appear-

ing in Pr oceedi ng s of the Ttienty-Eight h Annual Meeting, National

Academy of Arbitrators , 93-137 (l3NA, 1976) . The parties also

have negotiated provisions in Article XXXV concerning the creation

of Programs for Alcoholic Recovery (PAR) to assist employees in

recovering from this illness .

A number of circumstances cause the Arbitrator to question

the propriety of discharge under the circumstances here . One

circumstance is that the discharge was based in part upon Grievant's

reluctance to participate in AA programs, as was made clear in the

testimony by management officials as to their decision-making

process, as well as by their answers in the grievance procedure .

However, it is highly questionable ds to whether it was ever made

clear to Grievant that such participation was a condition of his

continued employment . The "prescribed program" for Grievant which

appears on Employer exhibit 4, and which includes #t4 participation,

was typed on said exhibit one or two days after Grievant signed

it, and Grievant was never given a copy of it . Grievant denies

that the PAR coordinator told him he would have to attend two AA

meetings a week, and further denies agreeing to such conditions .

fie states that the PAR coordinator "has never told me that I had

to do anything . That anything I did was voluntary," and that the

coordinator "will tell us that he recommends AA meetings, but he

says, 'I cannot make it mandatory because it is strictly voluntary,

and it is a separate and apart organization from PAR ."' In

subsequent testimony, Grievant again denied being told that he

was required to attend A?. meetings, and stated :

"In fact, quite the opposite . lie said that hecould not require anybody to attend an AAmeeting .

he has never made it mandatory . lie suggestedit at every meeting to attend an AA meeting,but he never made it mandatory to me ."

91he coordinator testified that he verbally prescribed and

made mandatory For Gricvant the program on Employer Exhibit 4,

including attendance at AA . When asked why these requirements

were not stated in the settlement agreement before being signed

by Grievant, the coordinator replied :

"I think possibly this would be a problem inregards to the beginning of this program justbeginning in the Charlotte Sectional Center . . . .We arc just establishing policy within theCharlotte Sectional Center . I maybe got more

involved and failed to realize that this shouldhave been in there prior ."

The coordinator further testified :

"I think the problem is that I didn't put itdown on paper . . . . T think the failure is on mypart in not putting it down in black and whiteas niandatorv ."

In the Arbitrator's Judgment, there was a lack of clarity as

to whether Grievant was required as a condition of continued

employment to attend AA meetings . Such confusion clearly could

have been prevented by giving Grievant a copy in writing of the

conditions that were .subsegttly added to Employer Exhibit 4 .

Of course, if such conditions were in fact only voluntary, it

might have made little difference if they were clearly communicatedito Grievant . But because the refusal to comply with the con-

ditions was used to impose and sustain the discharge, it was

necessary for such conditions, as well as the possible consequences

for violating them, to have been clearly communicated to the

employee . The Arbitrator finds that this was not done in this

case,,. primarily because, as the coordinator testified, the PAR

program at this,instaIlation was new and policies were still being

formulated .

A second circumstance is that the PAR program was only a fewvweeks old when Grievant's illness was recognized as alcoholism,

and by that time Grievant's alcoholism,as indicated by his past

history, was quite far advanced . However, Grievant's illness is

by no means incurable . As the PAR coordinator wrote on August 15,

1977,

"In my opinion, what happened to Mr . Stone istypical of a high percentageof people confrontedwith a drinking problem . After a short period ofsuccess in a recovery program (two to five months),they have a fall . I feel in his case this fallmay assist in his recovery . However, I would liketo make it very clear that there is no way to besure of this because it remains in his hands tofollow the recovery program ."

The Arbitrator was very impressed with the ability of the PAR

coordinator in dealing with the problems of alcoholism . Provided

that Grievant is willing to help himself to a greater degree, as

will be discussed later, the Arbitrator is of the opinion that

Grievant should have a fair opportunity to improve himself through

the PAR program .

A third factor which makes discharge too harsh a penalty is

the extremely stressful situation facing the Grievant when he again

resorted to alcohol ''in July . His wife had recently left him,

removing most of his furniture . He was loft with an empty house .

11e was hospitalized for several weeks . If we agree that alcoholism

is an illness, and that Grievant's absence, starting in July, was

due to a recurrence of such illness (so serious, in fact, as to

require hospitalization), then discharge seems too severe,

especially when considered in conjunction with the other cir-

cumstances discussed above . It might very well be true, as

contended by the Postal Service, that this recurrence would not

have occurred had Grievant fully followed the program prescribed

by the PAR coordinator . However, the Arbitrator deals further

with this point in discussing the question of remedy .

In accordance with the above discussion, the Arbitrator finds

that the Postal Service did not have just cause to discharge

Grievant, due to 1) the lack of clear and unambiguous communication

to Grievant concerning the AA requirements, 2) the newness of the

PAR program and the potential benefits of allowing Grievant to

fully participate in the program, and 3) the stressful situation

which led to Grievant's hospitalization and subsequent notice of

removal .

However, the Arbitrator is not persuaded that the Gricvant is

entitled to hack pay . The testimony indicated that the July and

August absences might never have occurred if Grievant had complied

with the PAR coordinator's suggestions, even if, as Grievant

testified, Gricvant assumed they were only voluntary in nature .

Grievant has indicated a reluctance throughout his employment to

recognize that he is afflicted with the disease of alcoholism, and

has particularly resisted participating in the programs of AA .

Ile has further not participated as fully as he should have in the

outpatient program conducted by the Veteran's Hospital . Grievant

claims that his church activities served as an adequate substitute

for AA . However, his claimed church involvement, as indicated

by the testimony of Pastor Stephans, was very limited, lasting

only a few weeks . Normal church activities of the type engaged

in by Grievant cannot be expected to serve as a complete substi-

tute for a sustained program such as that of AA which is directly

aimed at persons who arc suffering from alcoholism, nor was such

a claim advanced by Pastor Stephans . Although Grievant is now

attending another church, there also was no indication that these

church activities would serve as a complete substitute for AA,

although it is hoped that they will serve as another source of

support to Grievant in his recovery .

Moreover, it was a very close question in the Arbitrator's

Judgment as to whether Grievant should even be reinstated . Ulti-

mately, due to the adequacy of Grievant's performance when on the

job, the Arbitrator was persuaded that Grievant has the potential

to serve as a productive employee on a regular basis . However,

lie deserves to be reinstated only if he comes to terms with the

fact that lie is suffering from the disease of alcoholism and

follows strictly the program maintained for him by PAR . The

Arbitrator was impressed by the conscientiousness of the PAR

coordinator, and is convinced that lie has only the best interests

of Grievant at heart .

A critical question in the Arbitrator's mind is whether

Grievant is willing to fulfill the requirements of the PAR program,

including, regular attendance at AA meetings . Grievant was ambi-

valent on this question even at the arbitration hearing, but

ultimately agreed that lie would do so if the Arbitrator so rules .

Under the circumstances, the Arbitrator is willing to rein-

state the Grievant only on the condition that lie agrees, in

writing, to comply with these requirements of the PAR program :1 . Attend two meetings of AA (Alcoholics Anonymous)

per week ;

2 . Attend PAR meetings each week ;

~ . Contact daily with PAR office ;

4 . Commitment to the PAR program for not less thanthree years .

Moreover, it should be understood by Grievant that failure to

comply with these conditions, as well as any other reasonable

requirements imposed by PAR, may result in discharge .

AWARD

The Postal Service violated Article XVI by discharging Grievant

Robert L . Stone without just cause, and shall remedy the violation

by immediately reinstating Grievant under the conditions set forth

below . However, the period of time from thedischarge to rein-

statement shall he considered as a disciplinary suspension, for

which no hack pay will be awarded . Additionally, the Postal Service

is required to reinstate Grievant only if he agrees, in writing,

to the following requirements :

1 . Attend two meetings of AA (Alcoholics Anonymous)per week ;

2 . Attend PAR meeting each week ;

3 . Contact daily with the PAR office ;

-1 . Commitment to the PAR program for not less thanthree years ;

all with the understanding that failure to comply with these

requirements may result in discharge .

Robert B . TioberlyArbitrator

Cainesviiie , FloridaMarch 14, 19-3

ARBITRATION AWARD AGREEMENT NC-S-9535-DRobert B . Moberly, Arbitrator

The undersigned, as representatives of the United States Postal

Service and the National Association of Letter Carriers, Charlotte

Branch 545, with the concurrence of the grievant, R . L . Stone,

agree to the following arbitration award stipulations (NC-S-9535-D) .

1 . Attend two meetings of AA (Alcoholics Anonymous)per week ;

2 . Attend PAR meeting each week ;

3 . . Contact daily with the PAR office ; and

4 . Commitment to the PAR program for not less thanthree (3) years .

It is understood that the grievant, R . L . Stone, will be returned

to duty effective March 25, 1978, with the understanding that

failure to comply with these requirements may resultC .in discharge .

C . D . RobinsonMgr ., Employee Relations (E&LR)U . S . Post OfficeCharlotte, NC 28228

.17I< I

lCtc e"-7~ W' -B . R . MauldenPresident , Charlotte Branch 545National Assoc . of Letter CarriersCharlotte, NC 28210

DATE : March 20, 1978 ~- ~f%' '~R. L . StoneCity Carrier