C *~ l~X53REGULAR ARBITRATIONEASTERN PANELIn the Matter of Arbitration Under ) GRIEVANT : Robert Bakiesthe Labor Agreement Between ) .

POST OFFICE: Broadview/Brecksville Station, .Cleveland, OH

UNITED STATES POSTAL SERVICE )The Employer or Service ) MANAGEMENT CASE NO : C94N-4C-D 97046470-and- )

UNION CASE NO: BR-96-1541/ GTS12701NATIONAL ASSOCIATION OF LETTER )

CARRIERS, AFL-CIO ) ND NO: .2060The Union )

BEFORE: NICHOLAS DUDA JR., ARBITRATOR

APPEARANCES:

For the U.S. Postal Services : Ms. Elaine DombiLabor Relations SpecialistU.S. Postal ServiceP.O. Box 46940Cleveland, OH 44146

For the Union : Mr. Dennis PerkExecutive Vice President, Branch 40National Association of Letter Carriers2012 W . 25th St.Cleveland, OH 44113

Place of Hearing: Cleveland, OhioDates of Hearing : September 3, and 10, 1997

AWARD

The appeal is granted . There has been no showing that Grievant violated the spirit or the letter ofthe Probation Agreement. The rules he is charged with violating have not been enforced against otheremployees at this station; any technical violation of those rules by Grievant were so trivial as to bede minimus. Removal of this long-term employee was without just cause after his demonstration formore than a year that his prior misconduct had not been volitional and he had became a good employee.The subject removal was an arbitrary, capricious and unreasonable exercise of the authority in the priorarbitration Award.

The Service is directed to reinstate . Grievant, purge his record of the improper removal and makehim whole for wages and benefits lost .

Nicholas Duda Jr., Arbitrate

October 12, 1997

GWILLIAM J. COOKS

C94N-4C-D 97046470 ND2060 PAGE 2

SUBJECT: Notice of Proposed Removal based on alleged "Violation of Last Chance Probation'

NATURE OF THE CASE

Pursuant to provisions in an award by the undersigned Arbitrator, Grievant was

reinstated on a "Last Chance Probation" subject to discharge for misconduct, "including

violation of any of the Employer's rules, regulations or instructions."

On November 27, 1996 Supervision issued Grievant a Notice of Proposed Removal for

alleged violation of specified Postal rules and instructions . The subject grievance protests the

notice and the removal subsequently issued. After resolution was not achieved in the

grievance procedure, the Union appealed the grievance to arbitration . This Opinion and

Award decides issues in the subject case .

GRIEVANCE CASE FILE

11/27/96 Notice of Proposed Removal to Grievant from. Supervisor Steve Skladany

This action is based on the following reasons :

Charge No . 1: Violation of a Last Chance Probation

. . .The arbitration award stated that you were to be employed on a 'last chanceprobation' until July 1, 1997 . . . . subject to immediate discharge for misconduct,including violation of any of the Employer's rules, regulations or instructions .You and the Union. . .agreed, in writing, to the conditions and terms specified bythe arbitrator, including the conditions quoted above .

On October 29, 1996 . . .I came to route 4706, your regularly assigned route . . . .you had been assigned to the route on the day before . . . . On the top of the casewere four approximately six (6) inch rubber banded bundles of mixed first andthird class deliverable mail . . ..in delivery order. . . .next to the case were two flattubs. I initially thought one of the tubs was filled with garbage, the other hadboth first and second class letters and flats . As I took a closer look at the tubfilled with garbage, I noticed good mail underneath . . . .Altogether there wereapproximately 150 pieces of first class mail, the remaining undelivered mail wasthird class mail.

C94N-4C-D 97046470 ND2060 PAGE 3

On Wednesday, October 30, 1996, I interviewed you. . . .You did not denybringing this mail back. You replied it was bad DPS mail . I asked why, if thismail was bad DPS, hadn't you put it in . the return DPS case, as . you had beenrecently instructed . . . .You replied that you didn't have time. You stated youwere back in the station for only a minute before punching out and going home .I noted that the mail was from your route and . . .it was running in deliveryorder. I asked if it was running in order, how could it be returned DPS? Youhad no answer for this . . . .

. . .You didn't have a PS 1571 with this mail . . . .the stand up talk given just aweek prior by Supervisor Robert Halmayr . . . .instructed carriers . .. to report on aPS 1571 mail undelivered . . ..I asked you about the tub filled with garbage,including food garbage, covering good mail . You stated you meant to gothrough all of it when you returned, but didn't have enough time . . . .Youclocked in from the street at 1681 and ended tour at 1699, a total of 11 minutes inthe office. You gave no explanation for mixing garbage, including food garbage,with good deliverable mail.

, . .you worked approximately 9 and 1h hours . I had authorized . . .a total of 9hours of authorized work hours . . . . I asked you why you had worked theunauthorized overtime and had not called me for instructions concerning yourmail and your time, as I had instructed you to do that very morning . . . .yousimply stated you didn't have time to go to a phone and call, so you just ranover. I asked the supervisor on duty on the day in question, if you had verballyreported any undelivered mail . He stated that you had not approached him atthe end of your day, in any way, about bringing mail back, undelivered . Youdid not inform management in any way of your nondelivery of mail . The mailwas not delivered until the next day .

Your actions in this matter are in violation of Postal rules, regulations andinstructions such as, but not limited, those cited above . You have violated yourLast Chance Probation.

12/23/96 Step 2 Grievance by Branch 40 President Harrigan

Violation: National Article 16 . . . .

Facts: Bob was issued a letter of removal and we at the N .A.L.C. find it to be anunfair punishment. The mail that was found was non-sequenced D.P.S. mail. Itwas rubber-banded together and left on the case to be fused in with the nextday's mail. This was told to supervision . Mis-sorted D.P.S. mail is quitecommon for route 4706. The garbage on top of the mail was lunch garbagecleaned out of Bob's truck . Bob was going to throw out his garbage & straightenthis mail up, but was told to get off the clock . So he wash t able to do so . Bobwas going to straighten it out in the morning . Since he thought he would becalled in on his day off (being new on the route) . Unfortunately, he was notcalled in. Also, the missorted flats were thrown up by a casual carrier thatmorning. It's unfair to blame Bob for someone else's error.

C94N-4C-D 97046470 ND2060 PAGE 4

Union Contentions: Management is not taking into consideration that a newcarrier is on an extremely overburdened route (this is the reason the perviouscarrier left the, station), with a tremendous growth rate and instead of takingcorrective actin management is taking punitive action : This kind of action goesagainst their own M-39 (115) . Once again, Bob was told to get off the clock. Hecould not have had time to be filling out form 1571 . Also, the amount of badD.P.S. couldn't possibly fit in the slots of the D .P.S. case. Bob was going to showSupervision this in the morning & ask for either a larger slot on the D .P.S. caseor an alternative plan for this route due to the amount of the bad D .P.S. mail.The 11 minutes were used for parking his truck and returning his accountables .

Corrective Action Requested: Letter of removal be disregarded and the carrierbrought back to do his full duties as a United States letter carrier & BE MADEWHOLE.

1/27/97 Appeal to Step 3

Reasons for Appeal: Mgmt's actions are arbitrary & capricious & not corrective,but rather punitive in nature . On the day in question grievant followed theorders of his station mgr ., who instructed Mr. Bakies to 'hit off the clock'immediately. The grievant followed those instructions & therefore could notcomplete the duties he is being held accountable for in the letter of charges .Mgmt is using the language, as stated in Arbitrator N . Duda's decision of 6-7-96,& taking it to an unreasonable extreme. The Union feels this discipline is not forjust cause .

Corrective Action Requested: Rescind Notice of Proposed Removal, dated11-27-96 & make the grievant whole.

5/16/97 Step 3 Decision by Management Representative Ezelle Graham

. . .The facts of this case do not indicate that management violated the NationalAgreement. The evidence of record supports the action taken as for just cause .

. . .Grievant was returned to work as the result of an arbitrator's decision thatprovided him a 'last chance probation.' Less than six (6) months after grievant'sreturn approximately 150 pieces of first class mail and several pieces of thirdclass undelivered mail was found at the grievant's case . No acceptable reasoncould be provided by grievant for his failure to deliver the first and third classmail. Grievant's removal is warranted and for just cause .

This grievance is denied .

Not satisfied with that answer, NBA Cooke appealed to arbitration .

C94N-4C-D 97046470 ND2060 PAGE 5

The arbitration hearing was on two days, September 3 and 10, 1997. Each Party

presented argument and evidence, both documentary and testimonial. After the hearing

Grievant expressed his appreciation and satisfaction with the representation by the NALC .

POSITIONS OF THE PARTIES AT ARBITRATION

POSTAL SERVICE POSITION

Grievant and the Union accepted the conditions imposed by Arbitrator Duda for Grievant's

return to employment As a result Grievant was reemployed on a last chance probation which was

not to expire until July 1, 1997 . During the probation Grievant was subject to immediate discharge

for misconduct

On October 28, 1996 Grievant did commit misconduct His misconduct was putting

trash/garbage in a tub having first class mail, failing to submit a Form 1571 and working overtime

without authorization. Therefore Grievant was subject to discharge under the Last Chance

Probation. Accordingly the grievance should be denied and dismissed .

NALC POSITION

Management knew Grievant had just recently been appointed to a route that was greatly,

out of adjustment Often the DPS mail was not in delivery order, which was the same situation on

October 28, 1996 . However, Management took no action to assist him and did not give him

reasonable time to learn the route before cracking down on him .

Grievant was put in a no-win situation . The main problem involved in the prior removal

was Grievants record of not obeying Supervision . Because of the Award he was under a mandate

to obey. Thus, when he returned to the station on October 28, 1996, he was ordered off the clock

forthwith and before he could do anything with the mail he had brought back Rather than chance

being considered insubordinate , he left immediately without taking action about the mail and tubs

that contained a small amount of trash as well as mail. In other words, Grievant followed

Management's instructions as best he could .

C94N-4C-D 97046470 ND2060 PAGE 6

Grievant had returned about 18 minutes late because the route was overburdened and the

DPS was not in label order. Many Carriers, especially those delivering the route in question,

returned to the Station after their authorized time without being disciplined, provided they didn't

go into "penalty" overtime . Disciplining Grievant, under these circumstances, is arbitrary and

discriminatory, simply because Supervision resented being ' required to reinstate him under the

Arbitration Award. Therefore, the Union asks the Arbitrator find Grievant did not violate the Last

Chance Probation and reinstate him with all back pay lost .

ISSUES

Was Supervision authorized by Grievant's Last Chance Probation to remove him based on

his alleged misconduct on October 28, 1996? If not, what remedy is appropriate?

RELEVANT EXCERPTS FROM THE SUBMISSIONS

LABOR AGREEMENT

ARTICLE 16 - "Discipline Procedure"

Section 1. Principles

. . .a basic principle shall be that discipline shall be corrective in nature, ratherthan punitive. No employee may be disciplined or discharged except for justcause . . .. Any such discipline or discharge shall be subject to the grievance-arbitration procedure provided for in this Agreement, which could result inreinstatement and restitution, including back pay .

ARTICLE 28 - "Employer Claims"

The parties agree that continued public confidence in the Postal Service requiresthe proper care and handling of the USPS property, postal funds and themails . . . .

HANDBOOK F-22, TL-2, August 1991

213.6 Employee Clocking, End Tour. The employee must clock out at thescheduled ending time and leave the badge in the designated area . Anemployee must not clock out more than .08 hours before or after the scheduled

C94N-4C-D 97046470 ND2060 PAGE 7

end tour time without specific supervisory approval. . . .

M-41 HANDBOOK

112.1 Efficient Service. Provide reliable and efficient service . Federal statutesprovide penalties for persons who knowingly or willfully obstruct or retard themail. The statutes do not afford employees immunity from arrest for violationsof law .

112.21 Obey the instructions of your manager .

131.33 Unless otherwise instructed by a unit manager, deliver all maildistributed to your route prior to the leaving time for that trip and completedelivery within scheduled time . It is your responsibility to inform managementwhen this cannot be done . . . .

131.45 Do not curtail or eliminate any scheduled delivery or collection tripunless authorized by a manager, in which case you must record all facts onForm 1571.

131.46 Before you leave the office, enter on Form 1571 the mail curtailed; whenyou return, add any mail which was not delivered and which was returned tothe office . Follow any special local procedures set up to identify errors andcorrective actions for mail returned because it was out of sequence .

666.1 Discharge of Duties . Employees are expected to discharge their assignedduties conscientiously and effectively .

666.2 Behavior and Personal Habits . Employees are expected to conductthemselves during and outside of working hours in a manner which reflectsfavorably upon the Postal Service . . . .The Postal Service . . . does require that postalpersonnel be . . .reliable, trustworthy . . .. Employees are expect to maintainsatisfactory personal habits so as not to be obnoxious or offensive to otherpersons or to create unpleasant working conditions .

661.3 Standards of Conduct. Employees must avoid any action, whether or notspecifically prohibited by this Code, which might result in or create theappearance of:

c. Impeding Postal Service efficiency or economy .

f. Affecting adversely the confidence of the public in the integrity of the PostalService.

C94N-4C-D 97046470 ND2060 PAGE 8

Arbitration Decision C90N-4C-D 94046893

Conditions and Terms of Reinstatement

1 . . . .The Union may submit to Ms . Bindernagel a writing signed by the Unionand Grievant requesting that Grievant be reinstated on the conditions and termsspecified by the Arbitrator to which Union and Grievant agree .

3. If Grievant returns to work as provided . . . above, he will be regarded asemployed on a `last chance probation' until July 1, 1997. During that period:

he'will be subject to immediate discharge for misconduct, includingviolation of any of the Employer's rules, regulations or instructions .Advance written notice requirements and other provisions of Section 16 .5of the Agreement will not apply if Grievant is discharged for cause asprovided in this Paragraph 3.

6/14/96 Letter by Grievant and the NALC to the Postal Service

In compliance with Arbitrator Duda s decision dated June 7, 1995, we arerequesting the reinstatement of Robert Bakies on the conditions and termsspecified by the arbitrator to which the union and grievant agree .

ANALYSIS

FINDINGS OF FACT

Grievant was originally hired by the Postal Service in 1984. Over a period of several

years beginning in 1991 Grievant periodically had emotional outbursts in which he was'

disrespectful, profane, insubordinate and made threats of harm to Supervision and employees .

Supervision came to believe something was "wrong" with Grievant, causing his "Dr. Jekyll and

Mr. Hyde behavior. Various serious ' disciplines, including removal and emergency

placements were imposed without resulting in correction. He repeated his misconduct .

Finally, in January 1994 Grievant was placed on emergency status when Supervision

believed, based on his conduct of threatening Supervision and an employee, that Grievant

C94N-4C-D 97046470 ND2060 PAGE 9

might injure himself or others. He was issued a Removal for "conduct unbecoming a Postal

employee, threatening a Supervisor, failure to follow orders ." Grievances .challenging the

Emergency Placement and Removal were decided by the undersigned Arbitrator . He found

that after removal a medical doctor determined that Grievant's erratic behavior stemmed from

a deficiency of seratonin in his body . After an antidepressant was prescribed the outbursts

abruptly ended, and Grievant remained calm as well as alert . That change, according to the

evidence, continued to the arbitration more than a year after the event in question . The

Arbitrator concluded there had been just cause for the Emergency Placement . However, under

the circumstances of the case and with due consideration of Article 35, the Arbitrator found

that removal under the circumstances of the case was without just cause and was unreasonable

and punitive rather than corrective, as required by the Agreement . Therefore, the Grievant

was to be given an opportunity to demonstrate correction, as provided and encouraged by

Sections 16.1 and 35.1 of the Labor Agreement .

The Arbitrator specified terms and conditions giving Grievant a last opportunity to

show that his erratic behavior had been corrected and that he would obey instructions and bei

civil.

The Union and Grievant accepted the terms and conditions, which subjected Grievant

to discharge if, within a two-year period, he was guilty of misconduct, "including any violation

of Employer's rules, regulations or instructions ." Grievant returned to work and was

reinstated in July 1995 . Thereafter, even to the hearing dates in September 1997 two years

later, he did not suffer any outbursts and always obeyed the instructions of Supervision

without protest or complaint. Admittedly, after his return he was always pleasant and i

respectful, even during the event on October 28, 1996 for which he was discharged, and during

the processing of the subject grievance about his alleged conduct on that date .

Effective October 12, 1996 Grievant was assigned to fill a posted vacancy on mounted

Route 4706 in Brecksville/Broadview Station . That route is in an area rapidly changing and

developing. In March 1996, as the result of a route inspection, it was determined that the route

C94N-4C-D 97046470 ND2060 PAGE 10

was overburdened almost two hours, but the route was not changed , because additions were

almost daily as new homes were finished . Because of the decision not to revise the route until

construction slackened, the route scheme was bewildering, because it no longer followed the

labels. When DPS was introduced the route's delivery problems increased even more; the

holder of the route bid off, complaining it was too difficult. She took that action even though

she had been given authorization to work up to two hours overtime any day without express

permission, because the difficulties on the route were so well known .

For several months the route was delivered by a PTF . He was given help to case DPS

flats and also told that he could take up to two hours overtime every day without seeking and

obtaining specific authorization , because Supervision knew that at least two hours overtime

and the auxiliary service being provided were needed. To complicate matters, the DPS mail

was in the wrong sequence, based on previous labels no longer followed . DPS mail not

delivered because of the out of sequence was brought back to the Carrier desk and delivered

the next day without even reporting the return to Supervision . That procedure of returning

mail for delivery the next day was followed without the formal procedure of the Carrier filling

out a Form 1571 and taking the returned mail to a Supervisor, because the return on Route

4706 was an every- day, regular event, and often the only Supervisor still at the . Station when

the Carrier returned was the Station Manager .

There was even confusion about whether the DPS mail on the subject route was

certified. The Part Time Flexible who temporarily "held down" the route was told by the Prior

holder of the route that the DPS mail was not certified. So the PTF cased residential DPS mail

before attempting delivery to correct the improper delivery order . However, the Station

Manager discovered the PTF casing DPS mail and told him, if she ever caught him casing DPS

mail again, he would be disciplined . As a result the Part Time Flexible Carrier took the DPS

mail as he got it, knowing full well it was out of sequence and some of it would be brought

back on a daily basis .

When Grievant took over the route he understood there was an appreciation of how

C94N-4C-D 97046470 ND2060 PAGE 11

overburdened the route was and that overtime up to two hours a day was regularly assigned,

but because of his concern to avoid getting into problems , he would expressly ask for overtime,

and often he did not take the full two hours. As a matter of fact, on October 28, 1996 he asked

for only one hour of overtime , and, of course, was told he could have it. Previously he had

been given similar authorization and then exceeded the one hour , but returned before incurringI

penalty overtime, and no one had criticized him for it . On October 28 he returned to the Post

Office about 18 minutes late; he had not called to say that he could not get in on time and aski

permission to work more than an hour overtime . Grievant was in the Post Office for about 11

minutes after he punched in, during which time he turned in his accountables , brought mail

and tubs back to his case and went to the bathroom .

He brought back four 6-inch rubber-banded bundles DPS mail and two flat tubs, both

of which contained some letters and flats . One of his tubs contained the residue from his

McDonald's lunch, including a cup and a few pieces of french fries .

The Station Manager came to the Supervisor's desk and saw Grievant about 20 feet

away at his case . She said to him "What are you doing ? You are already beyond your

authorized time. You should have punched out. Hit the clock ." Grievant immediately left to

punch out, without saying anything to the Station Manager about mail or anything else . The

mail was on his case and in the tubs alongside his case in anticipation of being handled the .

next morning . The next morning the Supervisor of Customer Service discovered the mail

sitting in the case and in the tubs. Later the Supervisor questioned Grievant about his having

brought back the mail. Grievant said he had not had sufficient time to do anything with the

mail or even explain what he had done before the Station Manager sent him away the day

before . After review and consideration the . discharge/removal notice was issued , relying on

the Probation Agreement.

C94N-4C-D 97046470 ND2060. PAGE 12

EVALUATION

According to the Service , Grievant violated four rules, regulations or instructions, which

subjected him to discharge under the Probation Agreement . The first rule is said to require

that DPS mail returned to the Station must be deposited in the "Returned DPS Case ." There is

such a case. It is intended for DPS mail improperly given to a route that is to be sent back for

assignment to the correct route or to be re-cased manually into proper delivery sequence. That

rule had not been historically applied to Route 4706 , whose DPS mail was never in proper

delivery sequence, a fact known to Supervision and employees ; For that route, if the Carrier

did not correct the sequence on the route, he automatically returned it and cased it himself the

next day. That was the situation on October 28, and Grievant did the same thing that was

always done; he brought the mail back to the case, so it could be cased properly the next

morning. We find no violation of the general rule from which, Route 4706 was exempted.

For years there had been a national Postal requirement that a Carrier returning mail is

to make out a Form 1571 describing the situation and give both the mail and the form to his

Supervisor. As just noted, at the concerned station, and particularly in regard to the subject

route, mail returned, although deliverable, had not been given to the foreman . Furthermore,

no Form 1571 had been expected of the Carrier , so was not made out. It is true, the week

before the subject incident, during a stand-up safety meeting, one of the items read by the

Supervisor was that the Form 1571 was to be made out by the Carrier. There is no showing

that the long-standing disregard of that requirement changed after the Supervisor read the rule

the week before. As a matter of fact, the Supervisor knew that Grievant brought back mail

every day due to improper DPS sequencing, and he knew that mail had to be cased the next

day and delivered . There was no effective announcement that Supervision truly expected use

of the 1571 . The notice may have been read, but business whet on as usual with total ignorance

and no enforcement of the rule until the incident

Historically, up to two hours per day of overtime was authorized for Route 4706

C94N-4C-D 97046470 ND2060 PAGE 13

without any formal request . The understanding on Route 4706 was "work overtime as you

deem necessary, provided only that you cannot work penalty time without express

authorization." It is true that Grievant, in an abundance of caution, usually did request

overtime and did so on October 28, when his request for one hour was granted . The request

and approval were perfunctory . The real order was take up to two hours on your own. The

Station Manager seems to be the only one who did not know about that situation .

The next "rule" violated is related to the overtime . Technically, when Grievant saw he

could not finish within an hour he should have called ; but he knew, as already stated, that he

could take up to two hours as he deemed necessary.

In other words, the Supervision charged Grievant with technical violations of several

general "rules" which were not effectively rules at the subject station and Grievant 's route.

That point is significant in relation to the Probation Agreement, but the Agreement itself must

also be considered . When Grievant was brought back after the prior arbitration it was to give

him an opportunity to show that he could work without the outbursts, insubordination,

profanity and disrespect , which had occurred allegedly because of chemical problems within

his body. Supervision was skeptical that he would succeed and some awaited an occasion to

show that he had failed the opportunity. Actually, for more than a year after his return he

performed with flying colors . He was polite, respectful and hard working. As noted, he tried

to live within rules he knew were not being enforced against anyone else. The charges made

against Grievant, which were used and relied on to support his discharge, were not regarded

as significant at this station . Many people had violated the same "rules," but no one else was

disciplined . The attempt to discharge Grievant for violation of effectively non-existent rules is

arbitrary, capricious and unreasonable and not a proper application of the Probation

Agreement.

C94N-4C-D 97046470 ND2060 PAGE 14

AWARD

The appeal is granted. There has been no showing that Grievant violated the spirit or

the letter of the Probation Agreement . The rules he is charged with violating have not been

enforced against other employees at this station; any technical violation of those rules by

Grievant were so trivial as to be de minimus. Removal of this long-term employee was

without just cause after his demonstration for more than a year that his prior misconduct had

not been volitional and he had became a good employee . The subject removal was an

arbitrary, capricious and unreasonable exercise of the authority in the prior arbitration Award .

The Service is directed to reinstate Grievant, purge his record of the improper removal

and make him whole for wages and benefits lost.

2&/~ L~~ aDuda Jr., ArbitrateNicholas