.

C IS-9CIN THE MATTER OF THE ARBITRATION BETWEEN

UNITED STATES POSTAL SERVICE ) CASE NO. H94N-4H-D-96060209CTS NO. 029889

AND ) GRIEVANT : P. E. Dabbs

NATIONAL ASSOCIATION OF ) PLACE: Marietta, GALETTER CARRIERS ) DATE: September 17, 1996

BEFORE: J. REESE JOHNSTON, JR ., ARBITRATOR

APPEARANCES: FOR THE POSTAL SERVICE :Eloise Lance, Labor Relations SpecialistUnited States Postal Service3900 Crown Road, S.W.Room 255Atlanta, GA 30304-9351

FOR THE NALC:Greg Dixon, PresidentLocal Business Agent/Advocate, Region 9Branch 1119-NALC734 Roswell StreetMarietta, GA 30060

BRIEFS RECEIVED: October 5, 1996

AWARD: The Grievance of P.E. Dabbs is sustained and the Postal Service is directedto return her to the positions of employment she occupied prior to herremoval . Including, all back pay and other benefits, including interest onthe amount of back pay that she would be due. The back pay is to becalculated on the basis of 40 hours a week for each week that she has beenoff, plus overtime at the rate of time and one-half for all overtime hoursthat the employee who replaced Ms . Dabbs on her route worked during theperiod of time she was off the payroll . If there is a dispute between theGrievant and her Union and the Postal Service as to the amount of back paydue to Ms. Dabbs, I will retain jurisdiction of this matter for thirty (30)days and if either party notifies me in writing with copy to the other partiesthat the parties have not mutually agreed on the correct amount of backpay, I will set the matter of back pay down for further hearing .

DATE OF AWARD: October, 1996

e JQKpkton, Jr., Ar6 'ator

Suite 120Two Chase Corporate Driv

Birmingham, AL 35244-1015

BACKGROUND

The Grievant, P .E . Dabbs received a Notice of Removal dated March 11, 1996 . This

Notice of Removal read as follows :

"DATE: MARCH 11, 1996OUR REF: LG/baSUBJECT: NOTICE OF REMOVAL

TO: P.E. DABBSSSN 416-62-6709

MARIETTA GA 30067-9998

You are hereby notified that you will be removed from thePostal Service effective at the close of business on April 12,1996.

The reason (s) for this removal action are as follows :

Charge 1 : YOU ARE CHARGED WITH HAVING AN ATFAULT PREVENTABLE FIXED OBJECT.VEHICLE ACCIDENT.

Specifically , on December 12, 1995 after receiving a call frompostal customer , Marcia Brice of Ares Management reportingan accident , postal management began an investigation . Theinvestigation revealed that you were the postal carrier forDecember 12, 1995 for the postal customer located at 1090Northchase Pkwy . The investigation estimated the damageamount to be approximately $785 .00 to the landscaping at 1090Northchase Pkwy. The postal vehicle appeared to have nodamage. Upon your return to work on December 14, 1995 youwere interviewed about the accident and why you failed toreport it. You stated you did not feel you had an accident .You are charged with having an at fault preventable fixedobject vehicle accident .

Charge 2: YOU ARE CHARGED WITH FAILURE TOREPORT AN AT FAULT PREVENTABLEFIXED OBJECT. VEHICLE ACCIDENT .

On December 12, 1995, at approximately 1 :20p.m.,management received a call from postal customer , MarciaBrice of Ares Management group reporting an accident thathad taken place at approximately 12:30 p . m. Ms . Brice wascontacted by Executone, 1090 Northchase Pkwy., concerningsome damage that was caused by a postal vehicle to thelandscaping at the above address . Upon returning from yourdelivery route on December 12, 1995 you ended your tour ofduty and failed to report an at fault preventable fixed object,vehicle accident that you were involved in and you are chargedaccordingly .

"If this action is overturned on appeal , back pay will beallowed unless otherwise specified in the appropriate award ordecision , ONLY IF YOU HAVE MADE REASONABLEEFFORTS TO OBTAIN EMPLOYMENT DURING THERELEVANT NON-WORK PERIOD. The extent ofdocumentation necessary to support your back pay claim isexplained in the Employee and Labor Relations Manual,Section 436 ." (copy attached).

You have the right to file a grievance under the grievance-arbitration procedure set forth in Article 15, Section of theNational Agreement within fourteen ( 14) days of receipt of thisletter .

Loretta GomezManager, Customer ServicesMarietta GA 30067-9998

cc: disc, nalc, opf, ba, gmc, lbr rlt

RECEIVED BY : Refused to sien ATE: 3-11-96DELIVERED BY : Loretta Gomez DATE:3-11-96CONCURRED BY : Garth M. Cain DATE:3-8-96"

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This was the second Notice of Removal received by the Grievant, Ms . Dabbs, having received

a Notice of Removal dated January 4, 1996 which earlier Notice of Removal grew out the same

incident as the incident in the March 11, 1996 Notice of Removal . The Second Step designee

for the Postal Service offered to resolve this case at that step for a thirty (30) day suspension to

be served by the twenty-one (21) days that the Grievant had been off the payroll . The Union

refused to accept this settlement, the second step designee then wrote a letter dated February 28,

1996 addressed to Greg Dixon, President of Branch 11 19-NALC, the letter reads as follows :

"DATE: February 29, 1996OUR REF: BKH:inbSUBJECT: Step 2 Grievance Decision

TO: GREG DIXON PRESIDENTBRANCH 1119 NALC734 ROSWELL STREETMARIETTA GA 30060-2135

I am responding to USPS Grievance #9632 DN (NALC #D-96-01-06-067-JO-1) dated January 30, 1996 , and received in myoffice on January 30, 1996 . The Step 2 Rearing was held onFebruary 7, 1996. The time limit for processing Step 2 wasextended by mutual agreement .

The grievant, Phyllis Dabbs, SSN 416-62-6709, Full TimeRegular Letter Carrier, Gresham Road, Marietta, GA 30067,is alleging management has violated Article 16, of the NationalAgreement, when on January 6, 1996, the grievant was issueda Notice of Removal for having an At-Fault Preventable FixedObject Vehicle Accident, and failing to report it tomanagement .

The union contends management acted without just cause andwithout following proper discipline procedures. Managementby passed official discussion , LOW Suspension , and wentstraight to a Notice of Removal . Nothing happened whichproperly gives rise to discipline . Management ignored thestatement of witnesses and based discipline on a billing from alandscaping company.

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Corrective Action Requested : Rescind the discipline and makethe grievant whole .

The matters presented at Step 2 , as well as all applicablecontractual provisions, have been reviewed and given carefulconsideration .

After consideration of the aforementioned information , it is mydecision to withdraw the Notice of Removal for administrativereview .

B . Keith HarmonStep 2 DesigneeManager, Customer Service SupportMarietta, GA 30060-9998"

As can be seen by the above letter the Notice of Removal dated January 4, 1996, was

withdrawn for administrative review by the Postal Service . It was the issuance of the March 11,

1996, Notice of Removal that was before this Arbitrator on September 17, 1996 . In response

to the Second Notice of Removal the Union filed its contentions which were as follows :

"Union Contentions3-20-96JAMES OTOSStep 1D-96-03-11-067-JO-1Phyllis Dabbs-Letter of Removal

1 . The Letter of Removal for Phyllis Dabbs was issued on3-11-96 which was almost four months after the incident inquestion , which occurred on 12-12-96 and the issuing of thisdiscipline is certainly untimely C-01261 and C-1504 .

2 . Even if this were untrue, the Letter of Removal shouldbe denied because the discipline was not only ordered, butissued by higher management , the Station Manager, LorettaGomez, and not by her immediate supervisor . The agreementrequires discipline be proposed by lower level management andconcurred in by higher -level authority . The requirement wasomitted in this instance . C-04679

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3. This is the second discipline for this incident . On 1-4-96a Letter of Removal was issued for the same incident, and asecond Letter of Removal was issued on 3-11-96. At the end ofFebruary Management representative , Keith Harmon, toldGreg Dixon , the Union Step 2 representative that Managementwas going to reduce the first letter to a thirty day suspension,after the Grievant had served 21 days under the first Letter ofRemoval. The Grievant was contacted and told to return towork, and after one week , Management issued a second letterof Removal for the same incident which occurred on 12 - 12-96 .

It is unreasonable to allow management withdraw disciplineafter reviewing the defense to that discipline and reissuingdiscipline on the same incident in a effort to overcome thedefense . It is obvious in this case that their investigation in thefirst instance was inadequate , and their discipline was flawed .Management caused great distress to the Grievant, whonaturally thought that the Removal was withdrawn in lieu ofsuspension, as the Union was told , and should not have todefend herself twice for the same incident .

By returning the grievant to work after the original removalimplicitly mitigated the penalty to that suspension of 21 days .Thus, the imposition of the second discharge action one weeklater, after the grievant had returned to work , constituted asubsequent increase of or addition to the penalty for the sameoffense, an action which is violative of the due process rights ofthe grievant . Having implicitly set the penalty for thegrievant 's offense , the Service may not subsequently add tothat penalty , thus subjecting the grievant to "double jeopardy" .C-00095

4. Even if that were untrue, the discipline should be deniedbecause the charge was defective because the facts in were notproperly gathered and the investigation by Management wasfaulty. When the decision is to impose a penalty as severe asdischarge , care must be taken that all the relevant facts andevidence are considered . Discharge without a completeinvestigation falls short of minimum standards .

There were three witnesses who saw the incident and conferredwith the grievant after the incident , and management did notinterview these witnesses before issuing the discipline, nor didthey offer as evidence any statements by witnesses . The

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witnesses were interviewed by the Union and concurred withthe grievant ' s view of the incident . No harm, no foul .

Management accepted two different bills from AresManagement for damage supposedly done to eight bushes andyet the steward only slight damage to four buses , and thesebushes were priced at Home Depot at $ 10.00 each . Though theService paid over $500 in damages, less then $ 100 of damageswere actually done, but management failed to investigate thedamage themselves, but instead blindly accepted a estimatewhich could be and was self serving on the part of themanagement company involved, and in fact , the charges werereviewed and lowered from more then $800 .00 when the Unionraised this issue. Management did not wish to thoroughlyinvestigate this item because they did not want to put theirdecision , already made, to remove the employee.

The reasons why due process requires that an investigation bemade into all the relevant facts and circumstances , includingthe employee ' s explanation , before disciplinary action areseveral . A thorough investigation reduces the likelihood ofimpulsive and arbitrary decisions by management , and permitsdeliberate , informed judgement to prevail . The same evidencepresented prior to decision may have more important effectthan when offered at the grievance level . This is so simplybecause it is human nature to stick to and defend a decisionalready made. This reluctance to reconsider , even in the lightof new information, is more pronounced in labor-managementrelations because the employer has an additional institutionalinterest to 'stand firm' and defend the authority of thesupervisory personnel who made the decision to discharge . C-01030 .

5 . Even if this were untrue, the discipline should be deniedbecause management refused to disclose information to theUnion. At the time of the Step 1 meeting, and decision,management had given the Union no information or evidencepertaining to this case . Despite repeated requests by thesteward , management was not forthcoming with theirinvestigation , their correspondence with the other partiesinvolved , any interviews or any other evidence . Managementhas a the burden to prove that it had 'just cause ', and to givethe grievant and opportunity to answer the charges and disputethe evidence. A separate grievance, Refusal to provide

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Information, C-96-03-20-067-JO-1, has been filed by the Union .C-00308, C-00090, C-04273, C-06658 .

6. Even if this were untrue, the discipline should beremoved because the Service failed to charge the Grievant witha dischargeable offense . The reason given has not beenconsidered a removable offense in the past in Marietta, GA,but the Service wished to remove the Grievant because of herage. She is not as fast as her Officer Manager, LorettaGomez, would like her to be . To remove an employee aftermany years of good service by concocting a bastardized formof infraction is not allowed . C-01311

7. Even if this were untrue, this discipline should not besustained because even if the Grievant may have acted ascharged, she was provoked into this action by the witnesses atthe scene of the incident, who told her that there was nodamage and she could leave . C-05321

8. Even if this were not true, the discipline should not besustained because the Grievant was disparately treated . TheUnion can cite similar incidence in Marietta, Ga . where theemployees were given at the most a seven day suspension, andat the least no discipline what so ever . C-04401

9 . Even if all that is not true, the discipline should beremoved because management failed to follow the principles ofprogressive discipline . The grievant has no previous disciplinefor any action such as this . It has been held many times byother arbitrators that, for discipline to be corrective , it must beprogressive . This is a first occurrence , and since disciplineshould be corrective rather than punitive , which is the basicprinciple of discipline in the National Agreement , and since theincident was unintentional , and since it can be reasonablyassumed that there will be no similar incident such as this inthe future , then the discipline should be removed. C-00557, C-01043 , C-00060 , C-00584, C-01974, C-05902, C-06299, C-06894."

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It was the testimony of the Grievant 's immediate Supervisor that he investigated the

incident which occurred on December 12, 1995 and made a report to the Station Manager of

what he had found in his investigation . He further testified that he did not suggest or

recommend that the Grievant be given any discipline , but was instructed by the Station Manager

to request removal . Removal of the Grievant was not his idea .

The First Removal Letter was typed up to be signed by Jim Bruce , who was the

immediate supervisor referred to above, and in lieu of his signing said Notice of Removal it was

signed by another supervisor , although Mr . Bruce continued to work at the same station .

APPLICABLE CONTRACT PROVISIONS

Article 15, Section 2, 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 also may initiate a grievance at Step 1 within 14 days of the

date the Union first became aware of (or reasonably should have become aware of) the facts

giving rise to the grievance . IN such case the participation of an individual grievant is not

required . A Step I Union grievance may involve a complaint affecting more than one employee

in the office .

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Article 15, Section 2, Step I (b)

In any such discussion the Supervisor shall have authority to settle the grievance . The

steward or other Union representative likewise shall have 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 .

ISSUE

Were Mrs . Dabbs due process rights, as provided for under the National Agreement,

denied to her? If so, what should the remedy be?

DISCUSSION

I have reviewed my tapes of the testimony of all the witnesses, examined and reviewed

the exhibits introduced by the parties, played my tape of the excellent closing argument made

by the Union representative of the Grievant and I have read and studied the excellent post

hearing brief filed by the representative of the Postal Service . Based on all of the above, it is

my finding that when the immediate supervisor of the Grievant, having investigated the

December 12, 1995 incident did not recommend any discipline be imposed on the Grievant

arising out of that said incident, that for the station manager to re-impose the discipline, after

the second step designee had dismissed the First Letter of Notice of Removal and made the

Grievant whole for all time missed would deny the Grievant her due process rights under the

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National Agreement. It is my finding under the facts before me that the Second Letter of Notice

of Removal would be a violation of the due process rights of the Grievant . On that basis alone,

without consideration of the other grounds of failure of due process raised by the Union would

be sufficient to sustain the Grievance and not consider the case on its merits . The basis of my

above findings are hereinafter set out .

The Second Step designee apparently recognized that Ms . Dabbs had been denied her due

process rights under the Agreement when he rescinded the First Letter of Removal and directed

payment be made to Mrs. Dabbs for the days she had missed because of the First Letter of

Removal .

Article 15, Section 2 Step 1(a) specifically state the first step shall be with the immediate

supervisor . Step 1(b) says the supervisor shall have authority to settle the grievance . It is my

finding that Mr . Bruce did not have this authority after his original determination that Mrs .

Dabbs should not be given any discipline was overruled by the Station Manager who directed

him to remove Mrs. Dabbs from her employment . How could it be said under these

circumstances that Mr . Bruce had the authority to settle the grievance?

I am attaching hereto a copy marked Exhibit "A" of the United States Court of Appeals

Eleventh Circuit decision in the case of The United States Postal Service v . National Association

of Letter Carriers . AFL-CIO No . 87-7324 This case is an appeal from the United States

District Court for the Northern District of Alabama, NO. CV-86-G-1647-E . The District Court

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had vacated an arbitration award because Arbitrator Giles in that award held that the removal

of the grievant was procedurally defective in that the Notice of Removal was not issued by the

grievant ' s immediate supervisor . The carrier in that case had taken money from the mail. The

carrier had been prosecuted , found guilty , and sentenced to serve 60 days in jail , plus the

remainder of his three (3) year sentence to be suspended on good behavior . When the Postal

Service issued its first Notice of Removal, it was signed by the Postmaster . The Union raised

the issue that the National Agreement required that the Notice of Removal had to be signed by

the employee 's immediate supervisor . The Postal Service reissued a Notice of Removal signed

by the grievant's immediate supervisor . The Union grieved and when the matter reached the

arbitration step, it was heard by Arbitrator Giles . In his decision in this second case, the

arbitrator found that Management's case had been flawed by its own procedural error . The

Arbitrator again upheld the grievance . This decision was appealed to the United States District

Court for the Northern District of Alabama .

The District Court held that the Arbitrator's determination that the standard for discharge

of a letter carrier pursuant to the collective bargaining agreement, incorporated procedural due

process rights that could never be cured under the terms of the agreement was arbitrary, even

assuming there was failure to strictly comply with requirements of the agreement . That there

was no rational base for a legal principle that the Postal Service could never fire employees who

stole from the mail, simply because of procedural error, and after the error was corrected the

employee suffered no prejudice as a result . That this would violate public policy, to-wit, return

a convicted felon who stole from the mail to his employment with the Postal Service .

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The Circuit Court of Appeals held that the state of the law, on the issue whether an

arbitrator ' s decision to return to public employment a grievant whose procedural due process

may have been violated, if the basis for the termination of such grievant was contrary to public

policy, was somewhat unsettled . Therefore , the Court in affirming the District Court did so on

a different , but more established ground . The Circuit Court further stated :

"An arbitrator is confined to interpretation and application of the collectivebargaining agreement; he does not sit to dispense his own brand of industrialjustice . . . When the Arbitrator ' works manifest an infidelity to this obligation,courts have no choice to refuse enforcement of the award ." United Steelworkersof America v. Enterprise Wheel & Car Corps 363 US . 593,597, 80 S . Ct .1358,1361 .

"The arbitrator reasoned that it must be the employee 's immediatesupervisor that initiates a proposal for disciplinary action, whowould then seek concurrence of higher authority . The arbitratorconcluded that where the higher authority , not the immediatesupervisor , issues the notice, there is a violation of procedural dueprocess . In this case , it is clear that both the higher authority andthe immediate supervisor concurred in the decision that Watleyshould be terminated ."

"The Collective Bargaining Agreement does not suggest that onlythe immediate supervisor can issue the disciplinary notice . It onlyrequires that the postal official discussing the Step 1 grievance bethe immediate supervisor."

The facts in the case before this Arbitrator are very different from the facts before the

District Court and the Circuit Court of Appeals . There is not a public policy question in the

case before me . which arose out of a minor vehicle accident . The Circuit Court in its opinion,

cited above , recognizes that the National Agreement requires that Step 1 be heard by the

immediate supervisor . The provisions of the Agreement also provides that the immediate

13

supervisor has authority to settle the grievance at Step 1 . The immediate supervisor in the case

before me testified under oath that he did not think that Mrs . Dabbs should receive any

discipline for a minor traffic accident . When he was ordered to sign the Notice of Removal,

that authority to settle the grievance at Step 1 was taken from him and that taking denied the

Grievant a due process right guaranteed by Article 15 Step 1 (b) of the Agreement .

Coupled with the additional facts that the Second Letter of Removal was signed by the

Postmistress and heard at Step 1 by the Postmistress even though the Grievant's immediate

supervisor at the time of the incident was still working at the same station .

It is my finding that the facts in the case before me were materially different than those

in the case heard by the District Court and the Circuit Court . It is my further finding as was

the finding of the Circuit Court of Appeals that the Step 1 hearing under the Agreement is to

be heard by the immediate supervisor who must have the authority to settle the grievance . When

this right was denied to the grievant, as it was in this case, leads to the conclusion that the

grievant was denied her contractual due process rights .

It is my finding, under the facts before me, that had she been afforded the rights, as

specifically provided by the Agreement, the decision to terminate her employment would have

been different .

c : \wp5 l \johnston\usps \ dabbs . arb

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~iA,h,• ,-/ "U.S. POSTAL SERV. Y. NAT. ASSN OF LETTER CARRIERS 775Ch. m 647 Pad 773 (116 Cir. 19 4111)

no showing or assertion of what amend- reinstatement of letter carrier convicted ofents can or will be made, thus giving the stealing from mar. The United States Dis-trict court no basis for inferring that the trict Court for the Northern District of

de Iciencies in the original complaint can or Alabama, No. CV-86-G-1647-E, J . Foym;t be cured there 1 bsun t ' f

to.pt-oft71;2) .hered-t'say,

ntstheofnd-3O .arti-thro-d, a'&Mmd-aint

infp y aso no >s or Gain, Jr ., J., vacated arbitration award, and~;mq that ' ticeJun re uites that leav tq e o letter carriers union appealed. The Courtbe granted. See Pan-Islamic

srporation a Ersorr Corporation, of Appeals, Roney, Chief Judge, held that539, 546-48 (5th Cir.19S0), De. arbitrator's determination that standard

amend,Trade632 F.Loath u. Woodley, 406 F.2d 496, 496-97 for discharge incorporated procedural due

@9). A district court that denies process prong that could never be cured(5th Cir .leave to am d in that circumstance cannot under terms of collective bargaining agree-

ment, so that Postal Service would have toreinstate employee because notice of pro-posed removal issued to employee did notoriginate from immediate supervisor, butwas from someone higher in authority, wasarbitrary .

by any test be said to have engaged in anabuse of discrIetion.

Accepting the'deficiency in the complaintas the majority has it was not error todismiss plaintiffs complaint against theTown of Davie or Chief Weatherholt .There were simply inadequate allegationsto state a claim, as them. In additionthere was no abuse of ' cretion in denyingthe motion for reeonsi ration as to theTown of Davie and the Chief of Police .That motion for reconsid Lion was oneand the same as that previ sly describedand as to the Town and 'ef sufferedfrom the same deficiencies .Thus I would reverse the order of dismis-

sal as to officers Yawn and Behrends andremand for further proceedings . '\,I wouldaffirm both the dismissal of the complaintand the denial of the motion for reconsider-ation as to the Town and its police chief .

1r \o s"Y"".OSVSUM

UNITED STATES POSTAL SERVICE,Plaintiff-Appellee,

V.NATIONAL ASSOCIATION OF LET .

TER CARRIERS, AFL-CIO,Defendant-Appellant.

No. 87-7324 .

United States Court of Appeals,Eleventh Circuit

June 22, 1988 .

United States Postal Service chal-lenged arbitration award which required

Affirmed.

1. Arbitration e-61While great deference is normally ac

corded arbitration award, award is riot re-quired to be enforced which is arbitrary orcapricious .

2. Constitutional Law 41-275(5)Labor Relations e-455

Collective bargaining agreement be-tween Postal Service and letter carriersunion did not require that proposal for dis-ciplinary action be initiated by employee'simmediate supervisor, rather than someonehigher in authority, and fact that notice ofproposed removal was issued by someonehigher in authority could not amount to dueprocess deprivation, as determined by arbi-trator. U.S.C.A. Const.Amend. 5 .

3. Labor Relations 41-461Arbitrator's determination that stan-

dard for discharge of letter carrier, pursu-ant to collective bargaining agreement, in-corporated procedural due process prongthat could never be cured under terms ofagreement was arbitrary, even assumingthere was failure to strictly comply withrequirements of agreement; there was norational base for legal principle that PostalService could never fire employee who stole

V3

776 847 FEDERAL REPORTER, 8d SERMS .

from mail simply because of proceduralerror, where that error was corrected andemployee suffered no prejudice as result.18 U.S.C.A. § 1709; US.C.A. CoastAmend. 6.

when the proposed removal would become t.ff je ective, to whom he could respond ,and other information, including his right to fife

a grievance under the provisions of theCollective Bargaining Agreement betweenthe NALS and USPS. The postmaster is-

Cohen, Weiss & Simon, Keith E. Secular,John S . Bishop, New York City, Stropp &Nakamura, Robert H . Stropp, Jr ., Birming-ham, Ala., for defendant-appellant .Prank W. Donaldson, U.S. Atty ., Herbert

J. Lewis, III, Birmingham, Ala., Kevin Ra-chel, U .S. Postal Service, Washington, D.C .,for plaintiff-appellee.

Appeal from the United States DistrictCourt for the Northern District of Ala-bama .

Before RONEY, Chief Judge,TJOFLAT, Circuit Judge, and PAUL',District Judge.

RONEY, Chief Judge:National Association of Letter Carriers,

AFL-CIO (NALC) appeals an order of adistrict court vacating an arbitration awardwhich required reinstatement of an employ-ee convicted of stealing from the mail . Weaffirm.

Jackie Watley, an employee of the UnitedStates Postal Service, stole the contents oftwo "test letters" prepared by a postalinspector. Mr. Watley was charged withtwo counts of violating 18 U.S.C.A. § 1709,which prohibits mail theft by a postal em-ployee. Count I was dropped and Mr . Wat-ley pleaded guilty to Count 11 . On Septem-ber 4, 1985, he was sentenced to a term ofthree Years, the first 60 days of which wasto be served in prison with the remaindersuspended, given five years probation,fined $2,000, ordered to reimburse the United States Postal Service $11 .25 for themoney stolen from the mails, and orderedto pay a special assessment of $50.00.

On April 11, 1985, Mr. Watley had beenissued a notice of proposed removal, whichapprised him of the charges against him,

' Honorable Maurice M . Paul, US. District Judgefor the Northern District of Florida, sitting by

sued a final letter of decision on April 19, j1986, discharging Watley and informinghim that hisdtiltd hi fconuc voaesducisryresponsibilities and amounted to a betrayal ;of public trust. .l

Watley filed a grievance under the Cotslective Bargaining Agreement which pravides for resolution of disputes through I,multi-step grievance proceeding cnlmhtafring in arbitration before a neutral arbfttot When Watley' s grievance came to atebitration in November, 1985, the arbitratorfound that the first notice of proposed re-moval issued to Watley was defective be-

ecause it did not originate from his immedj-jate supervisor, but from someone higher]authority . The arbitrator labeled this"feet a violation of due process and orderWatley reinstated with back pay .The postal service corrected this prose--.A_, error by issi dtiung a secon noce

proposed removal dated November s1985, this one from Watley's immediate,supervisor . This second notice was fol-Ilowed by a lettf dii fhser oecsonrom te Pomaster terminating Watley,

An appeal followed, culminating in a seta Jand hearing . In this second proceedingthe arbitrator upheld his previous ruling,finding the procedural error non-correctable, stating:The Arbitration Hearing on November ' ;y15, 1985, addressed, in its early stages,.the Union's charge that Management's x_Case had been flawed by its own prose- 3ducal errors. The evidence was clear

.i2that Grievant's removal had not beenproposed by Grievant' s immediate super-visor, Roger Dempsey, but the action toremove originated with someone higher yin authority than Dempsey who, underthe circumstances, would not have haddesignation .

those charges cannot be upheld as a ba-sis for disciplinary action. In order forthe Grievant in this case to be chargedby the Postal Service he would have tohave committed a new offense while onduty. The second round of proposed re-moval, offers some additional informa-tion on the Judicial Action taken by theFederal District Court, but the chargesmade on November 20, 1985 are thesame charges contained in the originalNotice of Proposed Removal, dated April11, 1985 .

In making the Award in this Case, I shallreiterate that both rounds of removalnotices and the corresponding Grievancesare being dealt with as a unit. It is theverdict of this Arbitrator that the Griev-ances are upheld in recognition of thefact that the procedural errors weremade by Management, as it took steps toremove Grievant from the Postal Service,undermined his right of due process .The arbitrator Ordered all notices and

letters of decision removed from Watley'sfile, reinstatement with back pay and lostbenefits (exclusive of 60 days grievantspent in jail serving the criminal convictionthat arose out of these events) and 10%interest on the accrued pay that Watleywas eligible to receive under the terms of

U.S. POSTAL SERV . v. NAT. ASSN OF LETTER CARRIERS 777Ch. . 347 Pfd 77 3 ( 11 to C, . 1116)

the authority to settle the Grievance at the arbitration award, due to the delay instep one. In order for the proceedings to its implementation .meet the requirements of the National The district court vacated this award onAgreement, such a proposal for discipli- a motion for summary judgment an thenary action must originate with the im- ground that reinstatement of Watley withmediate supervisor, who would then seek the postal service , after his penal detention,concurrence of higher authority . In this is contrary to public policy .Case due process was not protected andthe Grievance was upheld . From this The public policy point turns on whetherpoint on. the merits of the Case are given the case meets the Supreme Court's deci-no further consideration. sion concerning the effect of public policy

considerations on labor arbitration awardsThis type of a case is, inevitably, frus- in Wit Grace and Co. v. Local Union 759,trating to Management which doubtless 461 US. 757, 103 S .Ct. 2177, 76 L .Ed.2d 298has ample evidence to justify removal of ( 1988) . See also United PaperworkersGrievant if the Case could be dealt with Int7 Union, AFL-CIO v. Misco, Inc., -on its merits as it was in the Federal US, -, 108 S .Ct. 364, 98 L.Ed.2d 286District Court, which does not operate (1987) . We see considerable merit in theunder the National Bargaining Agree- district court's rationale that there is ament. Once an employee's right of due public interest in not having postal employ-process has been breached, that Case ees who steal from the mail that brings amust be settled on the grounds that public policy to bear on this case . See

United States Postal Service v. AmericanPostal Workers Union, AFL-CIO, 736F.2d 822 (let Cir .1984) (arbitration awardrequiring Postal Service to reinstate em-ployee convicted of embezzling a large sumof money from it held to be a violation ofpublic policy) . Cf Iowa Elec. Light & Ptr.Co. v. Local Union 804. 834 F.2d 1424 (8thCir.1987) (arbitrator's award requiring rein-statement of nuclear power plant employeewho was discharged for violating federalsafety regulations vacated on public policygrounds) ; Stead Motors v. AutomobileMachinists, Lodge 1178, 843 F.2d 357 (9thCir.1988) (arbitrator's award requiring rein-statement post 120-day suspension of dis-charged automobile mechanic vacated onpublic policy grounds) . Nevertheless, sincethe state of the law on the issue seemssomewhat unsettled, cf. United StatesPostal Service v. American Postal Work-ers Union, AFL-CIO, supra, with UnitedStates Postal Service v. Natl. Assoc. ofLetter Carriers, AFL-CIO, 810 F.2d 1239(D.C .Cir .), petition for cert. granted, -U.S. - 108 S.Ct. 500, 98 L .Ed.2d 499(1987), petition for cer, dismissed as im-providently granted, - U.S. -, 108S.CL 1589, 99 L .Ed.2d 770 (1988) (awardrequiring reinstatement of postal employeeconvicted of unlawful delay of the mailsheld not violative of public policy), we af-

778 847 flDERAL REPORTER, 2d SERIEsfirm the district court on a different, butmore established ground. See Securitiesand Exchange Comm 'r, v. Chenery Corp.,18 U

The Collective Bargaining Agreedoes not st thugges at only the imm~supervisor can issue the disciplinary not.S . 80, 88, 63 S.Ct. 454, 459, 87 LEd.

626 (1943 ) (decision of lower court must beaffirmed if the result is correct althoughthe lower court relied upon a wrong groundor gave a wrong reason).

(1] While great deference is normallyaccorded an arbitration award, an award isnot required to be enforced which is arbi-trary or capricious . See Drummond CoalCo. v. United Mine Worker, of Am., 748F.2d 1495, 1497 (11th Cir.1984) (citing Love-less a Eastern Air Liner Ins, 681 F.2d1272, 1276 (11th Cir. 1982)) ; United Steel-workers of Am. v. US Gypsum Co., 492F.2d 713, 730 (5th Cir.), cert. denied, 419U.S. 998, 95 S .Ct. 312, 42 LEd. 271 (1974) ;Safeway Store, v. Am. Bakery & Confec-tionery Workers Intl. Union, Local 111,390 F.2d 79, 81 (5th Cir.1968) . "[A)n arbi-trator is confined to interpretation and ap-plication of the collective bargaining agree-ment; he does not sit to dispense his ownbrand of industrial justice . . . . When thearbitrator's words manifest an infidelity tothis obligation, courts have no choice but torefuse enforcement of the award ." UnitedSteelworkers of Am v. Enterprise Wheel& Car Corp ., 363 U.S. 593, 597, 80 S.Ct.1358, 1361, 4 LEd .2d 1424 (1960) . Such isthe case here .

[2] The arbitrator reasoned that it mustbe the employee 's immediate supervisorthat initiates a proposal for disciplinaryaction, who would then seek concurrence ofhigher authority . The arbitrator concludedthat where the higher authority, not theimmediate supervisor, issues the notice,there is a violation of procedural due pro-cess. In this case, it is clear that both thehigher authority and the immediate supervisor concurred in the decision that Watleyshould be terminated. The first notice, aswell as the second notice, was sufficient toput Watley on notice of the charges againsthim. Neither the arbitrator nor the appel-lants have cited any authority that therewas a violation of due process in the han-dling of the case .

only requires that the postal officialcussing the Step 1 grievance be the immediate supervisor The arbitrato.r reasonedthat if a hi h lg er evel supiervsor was onrecord favori di ing sc pline th i,emm tsupervis lor wou d not fl feeree to . o , .the Step I grievance and therefore the s ..perviaor initiating the discipline must alsobe the immeditiae supervsor. This argu:meat -'- be hih'"m cause ager ,supervisor will always be on record a}

ivot ng discipline by the time themeeting is held Higherlevel concurre,is required before disciplinary action cs~timposed. Thus, no matter which supersor proposed the removal Postnres, „wClark would be on record at Step I asconcurring .

(31 Even if there were a failurestrictly comply with the requirementsthe contract, that would not rise to a _~stantive due process violation but woul4only be a dproce ural dueiliprocess voaton.No authority has been cited that holds in'r.hsuch a hcase t at either th fil feaure toothe :contractt precisely or the due processviolation could not be cured . In our ,ment it is arbitrary to conclude thatstandard for discharge incorporates a

al,..ee durdural due process prong that can ne6~

be cured under the terms of the CollectiBargaining Agreement. There is no raal base for a legal principle that the ,._„,service can never fire an employee whosteals from the mail simply because of aProcedural error, where that error is cot .rected and the grievant suffers no preju-`dice as altresu .

Cases have consistently held that a viola=tion of procedural due process may be

dwaived or cured . See Glenn v. Newfnan; .614 F2d 467 472 (5th Ci1980 ed.,r. ), criticison other grounds, County of Mon.Florida a U.S Dept, of Labor 690 F,S, ,1359, 1363 (11th Cir .i982) (procedural dueProcess violation resulting from lack of ad-equate notice in pre-termination procedurescured through subsequent post-terminationpublic hearing) ; Barnett V. Housing Auth.

HOIHU r.as s 147 P.2d 779

of Atlanta, 707 F.2d 1571, 1578 (11th Cir .1983) (waiver).

Watley has not shown how he has beenprejudiced in any way in being able tocontest his removal on the merits in anarbitration hearing because of this se-quence of events.

Accordingly, the district court isAFFIRMED.

d, Asst Atty. Gen., Joseph E . diGe-U.S. Atty., Jeffrey Axeirad, Director,ranch and Barbara L. Herwig.

i RICH and NIES, Circuitd BALDWIN, Senior Circuit

PER CU M.This appeal omes to this court following

the decision of a Supreme Court in Unit-

Willi HOHRI; Hannah TakagiHo._s ;

Chi"uko Omori, Ind . and Rep.

for I ruko Omori; Midori Kimura;Kerry mori; John Omori, Ind. andRep. for uro Omen; Gladyce Sumida;Kyoshlro Tokunaga; Tom Nakao; Har-ry Ueno: Edward Tokeshi; RentaroHashimoto, Nelson Kitsuse, Ind . andRep, for Ta eshi Kitsuse ; Eddie Sato ;Sam Ozaki, 41 d. and Rep. for KyujiroOzaki ; Kum Toda. Ind . and Rep, forSuketaro Toda, Kaz Oshiki ; George R.ikeda; Tim T yoshi; Cathy Takayo-ahi; National uncil for JapaneseAmer . Redress, P intiffs-Appellants,

The UNITED STA'IcES of America,Defendant-Appellee.

No. 87-1635 .

United States Court ~{ Appeals,Federal Circuit,.

May 11, 1988 .

Appealed from : U .S. District Court forthe District of Columbia; Qberdorfer,Judge,

Benjamin L. Zelenko, Landis, Cohen,Rauh and Zelenko, Washington, C ., ar-gued for plaintiffs-appellants, With im onthe brief were B. Michael Rauh and artinShulman .

Jay S . Bybee, Dept. of Justice, Washton, D.C., argued for defendant-appeal

ed States v. Hoh ' 482 U .S. -, 107 S,Ct2246 , 96 L.Ed.2d 1 (1987) (vacating judg-ment of District o Columbia Circuit andremanding with ins coons to transfer tothis court pursuant 28 U.S.C. § 1631(1982)) . In Hohn, the upreme Court heldthat a case which prese is both a nontaxclaim under the "Little ucker Act," 28U.S.C. § 1346(aX2) (1982 ), nd a claim un-der the Federal Tort Claims ct, 28 U.S.C .§ 1346(b) (1982), as here, ma be appealeonly to the Court of Appeals fo the Fedal Circuit.

The appeal here is from the judthe United States District CourtDistrict of Columbia, 586 FSupp . 76C.1984) (Oberdorfer, J .), dismi4sin

!nt ofr the(D. D .

theclaims of nineteen individuals and an onization of Japanese-A meridans wsought damages and declaratory relief

h

injuries resulting from the internment oJapanese-Americans during' World War II .The district court held, /inter alia, thatappellants' claims were ,barred by applica-ble statutes of limitations .Each of the name us issues raised to

this court is fully addressed in the opinionof Judge Oberdo r. After a meticulousreview of that op' ion, we are unpersuadedof any error . W see no need to restate orelaborate on district court's careful andscholarly ana sis, nor to burden appellantswith furthell delay . Accordingly, we af-firm for the reasons stated in the districtcourt opinion .AFFIRMED.

BALDWIN, Senior Circuit Judge,dissenting-in-part .Tlie majority adopts, in toto, the District

Court's opinion, Hohri v . United States,

Us- 779ed ar. 1911)(th him on the brief were Richard K .