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VOLUNTARY LABOR ARBITRATION
IN THE MATTER OF THE ARBITRATION i GRIEVANCE OF :
BETWEEN i FAITH I. McGRADY(Removal - theft and
UNITED STATES POSTAL SERVICE ; attempted sale ofCHICAGO, ' ILLINOIS POST OFFICE ; marijuana)CHICAGO , ILLINOIS 60607-9403
and
NATIONAL ASSOCIATION OF LETTER CARRIERSBRANCH NO . 11CHICAGO, ILLINOIS 60606
CASE NO . CIN-4D-D 37460ARB . NO . 8656
NATIONAL BUSII?E :-.SGUNTRAL RE(I
OPINION & AWARD
Subject: Unacceptable conduct as a postal employee - allegation ofagreement to supply 1/4 lb . of marijuana to a confidentialinformant of the U .S . postal inspection service, while onpostal property on September 6, 1984 . Claim that Grievantreceived $ 200 .00 to deliver the marijuana but neitherreturned the money paid to her by the informant nordelivered it .
Submission Agreement : Faith I . McGrady , GrievantWas the removal of the Grievant for just cause , and, if not,what shall the remedy be?
Contract and Handbook and Manual Provisions :Articles 3, 16 and 19 of the 1984 National Agreement,Jt . Ex . 1 ;Part 661 .1 of the Employee and Labor Relations Manual(ELM) (purpose of code of ethical conduct) ;Part 661 .21 (code of ethics for government service) ;Part 661 .3 of the ELM (standards of conduct) ;Part 661 .53 ( unacceptable conduct) .
Appearances :
For the EmployerHarvey E . Walden, III .William P . AtkinsJerome TerryDavid Baily, ELLeonard C . Moody
For the Union :W . Michael FayJames AtkinsJohn McKinneyErnest ReidJayne BoughtonSamuel WallaceFaith I . McGrady
Labor Relations RepresentativePostal InspectorWitnessWitnessWitness
AttorneyPostal Inspector (Adv . Wit .)CarrierWitnessReputation WitnessWitnessGrievant
I . INTRODUCTION
The hearing in this case was held on Friday , May 31,
1985 at the main post office , 433 West Van Buren Street , Chicago,
Illinois , 60607 - 9403 , before the undersigned Arbitrator assigned
by the parties pursuant to the Rules of the United States Postal
Service Regular Regional Level Arbitration Procedures to render a
final and binding decision in this matter . At the hearing, both
parties were afforded a full opportunity to present such evidence
and argument as desired , including an examination and
cross -examination of all witnesses . No formal transcript of the
hearing was made and each of the parties waived filing of a
post -hearing brief , since each relied on its comprehensive oral
closing . Both parties stipulated at the hearing as to this
Arbitrator ' s jurisdiction and authority to issue a final and
binding decision in this matter .
II . STATEMENT OF THE GRIEVANCE
Grievant was arrested Friday, November 16, 1984 forallegedly being involved in the sale and delivery of acontrolled substance while officially employed .Grievant claims she is innocent of all the charges .
III . FACTUAL BACKGROUND
On December 20, 1984, the Grievant was issued a Notice
of Charges - Removal, to be effective no earlier than 30 days
from receipt by Grievant . The Notice of Removal specified the
following grounds as reason for the discharge :
Unacceptable conduct as a Postal employee as evidencedby your agreement to supply 1/4 pound of marijuana to aConfidential Informant of the U . S . Postal Inspectors,while on Postal property on September 6, 1984 . You
were paid $200 .00 for the marijuana, which you promisedto deliver . You did not deliver the marijuana nor didyou return the money the Informant paid you for themarijuana .
You were arrested on November 16, 1984 , and charged withtheft . Your arrest reflected adversely upon the PostalService as it was publicized in the news media, whichincluded an article in The Chicago Defender, datedNovember 19, 1984 .
You have the right to file a grievance under theGrievance - Arbitration procedure set forth in Article15, Section 2 of the National Agreement within 14 daysof your receipt of this notice . (Jt . Ex . 6)
Pursuant to the Notice, Grievant was removed from the
employ of the Service on or about January 20, 1985 . The reason
for the removal was that Grievant allegedly engaged in
unacceptable conduct in violation of the Code of Ethical Conduct
of the Service, in that she allegedly had received $200 .00 from a
Confidential Informant to sell him marijuana but, after accepting
the money, neither returned it or supplied the marijuana .
The circumstances and explanation of the removal can
perhaps best be summarized by quoting paragraphs one through four
of the Investigative Memorandum submitted to the Post Master by
the Postal Inspection Service . This Investigative Memorandum
states impertinent part as follows :
1 . The basis for this investigation was informationthat Faith I . McGrady, Grand Crossing Station, Chicago,IL, was engaged in the sale of controlled substances toother Postal employees .
2 . On September 6, 1984, at approximately 1 :00 o'clockp .m ., a Confidential Informant working with the UnitedStates Postal Inspection Service, met with FaithMcGrady at the Grand Crossing Post office, for thepurpose of buying 1/4 lb . of marijuana for $200 . TheInformant then gave McGrady $200 for the marijuana, andwas told by McGrady that she could have it for him by7 :00 o'clock or 8 :00 o'clock that evening .
3 . Repeated attempts by the Informant to contact Faith
McGrady concerning delivery of the marijuana haveproved unsuccessful . To date , McGrady has notdelivered the 1 / 4 lb . of marijuana , nor has shereturned the money paid for that marijuana .
4 . On November 16, 1984 , Faith I . McGrady was arrestedby Postal Inspectors with the assistance of the ChicagoPolice Department . She was charged with violation ofIllinois Revised Statutes , Chapter 38, Section 16-1(b)(1), Theft . Additional memorandums will besubmitted pending disposition of this case in court .(Jt . Ex . 3)
According to the Service , evidence was obtained by
Management of the Chicago Lawn Station that sale of drugs was
taking place on and off premises , and that these sales involved
Postal employees . The information was communicated to the Postal
Inspection Service , along with further information that Grievant
was one of the employees suspected of being engaged in the sale
of controlled substances to other Postal employees .
On September 6, 1984, at approximately 1 :00 p .m., a
Confidential Informant , one Jerome Terry, working with the
Inspection Service met with Grievant at the Grand Crossing Post
Office, for the purpose of buying one quarter pound of marijuana .
This meeting was electronically surveilled by two Postal
Inspectors . By prior agreement , the two Postal Inspectors had
arranged with the Confidential Informant that the "buy" would be
made in the front parking lot, where the two Postal Inspectors,
Atkins and Jesse, could observe the sale . However , the sole
interchange which forms the basis for the removal here actually
occurred inside the building ; accordingly , the Postal Inspectors
merely heard a conversation on the tape recorder hidden on the
Informant ' s person . Both Inspector Atkins and Informant Terry
testified and described the conversation as a business
transaction , including an agreement by a woman named "Faith" or
"Faye" that she could get Terry a 1/4 pound of marijuana .
Informant Terry testified that he then gave the Grievant ( whom he
identified at the hearing) $200 for the purchase of the marijuana
and he in turn was told by her that she would have it for him by
7 :00 or 8 :00 p . m. that day .
Management witnesses , including Terry and Atkins, both
testified that , after the "undercover meeting" where money was
delivered to Grievant , they proceeded according to plan to
arrange for her arrest upon delivery . However , no one appeared
at the appointed place of delivery . Repeated attempts by the
Informant to contact the Grievant concerning delivery of
marijuana have continuously proved unsuccessful , Management
notes . Therefore , the Grievant did not deliver the 1/4 pound of
marijuana , nor did she return the money paid for that marijuana .
Accordingly , we have a simple case of theft of money supplied by
the Federal Government . Such conduct on Grievant's part
constitutes theft and is obviously a dischargable offense under
this labor contract .
Consequently , on November 16, 1984, the Grievant was
arrested and, as noted above , ultimately removed . It was upon
these facts that the instant grievance came before the Arbitrator
for final and binding resolution .
IV . CONTENTIONS OF THE PARTIES
A . The Service
According to Management , Grievant ' s arrest was
publicized in the news media, including an article in The Chicago
Defender , dated November 19, 1984, included in this record as an
attachment to Joint Exhibit 3 , the Investigative Memorandum
quoted above . To the Employer , this case is like any other in
which an employee commits theft , even though at first blush it
may appear as a dispute involving sale or transfer of controlled
substances . The essence of the charge is that Grievant received
$200 from the Federal Government , by way of the Postal Inspection
Service through the Confidential Informant . She never returned
the money nor did she deliver the promised goods . Such conduct
obviously violates the Code of Ethics for Government Service,
referenced above, and also violates the Federal Law which
prohibits this kind of activity on or off the work premises .
The theft convincingly proved here is clearly a breach
of the numerous applicable rules and regulations of the Service
above -noted and obviously is also in direct derogation of the
Postal service's basic mission , Management submits . Numerous
arbitrators have sustained the Employer in its belief that once
the underlying facts are admitted or proved in this sort of case,
it has the absolute right to discharge the employee ; and such
action is entirely within the boundaries of the just cause
principle . It has been proved by the preponderance of evidence
presented that Grievant was involved in an instance of serious
misconduct and that her retention would not be in the best
interest of the public, nor would it have a positive effect on
morale in the involved work station or further the goal of
efficient service, argues the Employer .
Management presented an Award by Arbitrator Peter
DiLeone in a case between these parties involving Grievant
- 6 -
Charles Vowels , Case No. CIN-4T-D 34320 , to show that even a
long-term employee with an excellent work record cannot
successfully plead mitigation when the underlying reason for
discharge is sale of drugs by Postal employees . Management
stresses that the discharge penalty in this case cannot be deemed
punitive rather than corrective .
Accordingly, Management argues , the grievance should be
denied and the Arbitrator should dismiss the grievance in its
entirety as being totally without merit .
B . The Union
By contrast , the Union views this case in an entirely
different light . It questions whether any probative evidence,
let alone convincing evidence , of an involvement by this Grievant
in alleged sales or theft was proved by the Employer . It also
casts doubt on the procedures utilized in this case and on the
credibility of the key witness , Confidential Informant Jerome
Terry . Accordingly , it requests the Arbitrator to sustain the
grievance in its entirety and reinstate Grievant with full back
pay and all other benefits restored to her .
First , the Union argues that the Grievant was acquitted
in a criminal proceeding of the exact same charge that is
levelled against her here by the Postal Service . The primary
witnesses who appeared at the criminal case and at the
arbitration were identical and nothing new or different was
offered in this proceeding from the criminal case . All
participants acknowledge that no one other than Terry could have
possibly observed Grievant or whoever it was that Terry spoke to
on September 6 . The two Postal Inspectors could only hear a
conversation through the tape device hidden on the informant's
person. Despite explicit instructions, Terry did not go to a
previously agreed location for the consummation of the
transaction, where observation by the two Inspectors could have
been possible . Where Management has accused an employee of
theft, a crime involving moral turpitude, proof beyond a
reasonable doubt is required . Any fair reading of the record in
this case shows that Management has not come close to sustaining
this burden, especially in light of the fact that a Criminal
Court Judge has already found specifically that such was not the
case, the Union submits .
Second, in support of its position, the Union
emphasizes the conflict in the testimony between the Grievant and
Terry and urges that the Grievant is the more credible witness .
The Union emphasizes that Terry was an evasive and inconsistent
witness at the hearing . Moreover, Terry is a convicted felon
a drug addict . He has been paid substantial sums to work for
Postal Inspection Service, and to act as an Informant . Yet
and
the
his
own record for truth and veracity can most charitably be
characterized as terrible . The Grievant, on the other hand, had
an excellent work record and enjoys a fine reputation for truth
and veracity both at work and in her community . Two reputation
witnesses were presented to directly testify as to that important
point. Moreover, there was no evidence introduced at hearing as
to a bad prior disciplinary record or other specific instances of
wrong-doing which would in any way reflect on Grievant's
credibility .
Utilizing the traditional standards for resolving
credibility , then , the Arbitrator must credit Grievant ' s version
of the facts over that of the so called " Confidential Informant,"
Terry. ( Perhaps Terry is the best person to know what happened
to the $200 foolishly given to him by the Postal Inspectors,
suggests the Union .) Grievant was a frank , straight forward
witness who has consistently and credibly denied any involvement
in this matter from the time she was first accused . Nothing
detracts from her complete denial of involvement here, and
nothing in her record belies her credibility . Terry, on the
other hand , is a liar, a felon , and even Postal Inspector Atkins
conceded in his testimony that Terry has lied to him about "money
matters," and is apparently a drug addict . Grievant should be
credited and Terry ' s false and uncorroborated accussation against
Grievant should be rejected out-of -hand by this Arbitrator .
Third , the Union stresses that there were numerous
inconsistencies and failure of proof, putting aside the
credibility of "Confidential Informant " Terry . Perhaps most
important is the fact that the tape which allegedly recorded the
conversation between Terry and a "Faye" was not present at the
hearing . The Employer claims, through the testimony of Postal
Inspector Atkins , that the tape was destroyed during duplication .
At any rate, the tape was not available for admission into the
record . The only evidence presented as to the content of the
tape or recording of the crucial interchange on September 6 was
the hearsay statements of Inspector Atkins, along with Terry's
own self-serving claims . Yet , Union Exhibit 2 , the "Buy Summary
Sheet" reveals that the tape was duplicated on October 12, 1984,
by what appears to be "Arfa " and was transcribed on September 26,
1984 by one Roberta Fowler . The existence and availability of
the tape for corroboration is apparent , even though it also
contains substantial heresay problems .
In addition , the "Buy Summary Sheet," Union Exhibit 2,
contains the following narrative filled out by the Postal
Inspector :
"Narrative : The CI was sent into the Grand CrossingStation to buy marijuana from Faye . She told him she wanted$250 for 1 / 4 lb . of grass and the CI stated that was toomuch . He told her he only had $ 200 .00 , but he would giveher some extra later . She said OK, but wanted some of thegrass . The CI said he could not give her any dope , he wouldgive her money later . The CI then handed her $200 for 1/4lb. of marijuana , with delivery set for 9-7 - 84 ." (UnionExhibit 2)
It is to be noted that the summary by the Inspectors
indicates that the woman was referred to as Faye , and not Faith,
the name of the Grievant . Moreover , the date for delivery of
marijuana was not at 7-8 p .m . on September 6 , but was set for the
next day . There are , obviously , several discrepancies even in
the case presented by Management and the reports by the Postal
Inspectors themselves . These further detract from the persua-
siveness of its claims , the Union opines . See the quoted por-
tions of the Investigative Memorandum , Joint Exhibit 3, set forth
above .
The Union further notes that the Grievant testified on
her own behalf . In sum , her testimony was that she had worked
for the Postal Service for over twelve years at the time of her
removal , with a break in service when she worked for the Treasury
Department . She testified that she had nothing to do with the
sale of drugs or with theft and did not know the Confidential
Informant . She acknowledged that she was sometimes called Faye,
but also testified that at least one other employee at the
involved Postal facility was called by that name . She testified
that she did not use alcohol or drugs and that she was unaware of
sale or use of controlled substances by Postal employees at the
involved facility .
In sum, the Union stresses that the credible testimony
of Grievant or the Employer witnesses other than the highly
suspect testimony of Confidential Informant Terry does not in an
way support Management ' s claims of theft or an attempted sale of
drugs on the part of Grievant . At most, Management ' s evidence
can be characterized as showing $200 of taxpayers' money was
foolishly given to Mr . Terry and someone has to be blamed for
this loss . To extrapolate from these facts any basis for the
removal of Grievant does not relate to the actual evidence
produced by the Employer . The union accordingly takes the
position that the Postal Service did not have just cause to
terminate the Grievant from employment . In its view, Grievant
must be reinstated with full back pay, in light of the just cause
standards governing any removal under the National Agreement, Jt .
Ex . 1 .
V . DISCUSSION AND FINDINGS
It must be acknowledged that the act of theft or
conversion of Employer property and the possession and sale of
marijuana or other controlled substances at the work station are
two of the gravest offenses which an employee can commit, and
when such reprehensible action occurs, immediate termination is
proper and fully justified, regardless of a prior clean record
and long service . I, like numerous other arbitrators, have
uniformly recognized such a right to summarily discharge an
employee without consideration of his or her prior work record
when, as here, the authority to discharge is derived from
specific language in the labor contract (Article XVI, Section 1
of Jt . Ex. 1), which gave actual notice to employees that theft
or pilferage would result in immediate discharge . Accordingly,
the precedent Award of Arbitrator DiLeone cited to be by the
Employer merely follows a long line of other cases and capably
summarizes what is clearly a consensus rule . No further
principles applicable to this case, other than long-term
employees can be fired for sale of drugs, can be gleaned from
that case .
In the instant matter, it is still the Employer's
burden to come forward with clear, unequivocal and convincing
evidence of theft to sustain its discharge of Grievant McGrady .
In Arbitrator DiLeone's precedent Award, the Arbitrator concluded
that in fact a sale of drugs had taken place ; and accordingly he
found the issue of mitigation not applicable when there is a
right to summarily discharge for such rule violations . In the
instant case, the Employer was equally obliged to prove that
Grievant agreed to sell marijuana to Confidential Informant
and that she took $200 supplied to her by the Informant .
Terry
The Employer has totally failed to prove each pertinent
allegation against Grievant under any reasonable reading of the
evidence placed on this record, whether the burden of proof is
considered to be convincing evidence or the lesser preponderence
of the evidence standard . I must therefore find that the
Employer did not have just cause to terminate this Grievant .
First, I do note that the finding of not guilty is to some
degree irrelevant to the resolution of this dispute, in my view .
I have recently held that the differences in policy and
procedural requirements between a criminal trial and an
arbitration over a discharge of a Postal employee are
sufficiently substantial so as to render a not guilty verdict not
controlling on the factual questions presented to an arbitrator
for resolution. It is one piece of evidence which may be
considered, however . See Case No . CIN-4H-D 31474 and CIN-4H-D
31482 (grievance of Ricky Bryant, August 28, 1985) . See also
Case No . C8N-4E-D 6867 (NALC and Postal Service, Norman Harvey,
Grievant) issued by Arbitrator Bernard Dobranski on April 21,
1980 . ("An arbitration proceeding is a significantly different
one from a criminal proceeding and a conclusion reached in one
forum does not necessarily mandate the same result in the
other") .
As Arbitrator Dobranski correctly notes, there are
different burdens of proof, different fact finders, the
possibility of different testimony and evidence submitted and
different rules of evidence supplied in a criminal case and in
arbitration . Yet the not guilty finding is admissible into
evidence on the record at the arbitration hearing and constitutes
at least one detracting factor against Management's claim that
its version of the facts must be credited .
Second, because of the informal nature of the
arbitration process, the hearsay nature of the testimony of
Postal Inspector Atkins concerning the alleged conversation
between Grievant and a woman named Faye on September 6, 1984
relates solely to weight and not admissibility . The Arbitrator
has recently held in the case of John Smith, CIN-4B-D 31325, that
hearsay evidence alone can not support a discharge and that an
irreducibly minimum or residual of appropriate evidence i s
required. Certainly, introduction of the tapes of the
conversation between Confidential Informant Terry and whomever he
spoke to on September 6 would have supplied more substantial
corroboration of Management's claim that a deal was made and
money passed to a woman named Faye, who was in fact Grievant .
The destruction of the tape raises further doubts and weakens
even more of Management's proof here because it eliminates the
possibility of a voice check or comparison with the voice of
Grievant .
The crux of this case, then, centers around the
resolution of credibility, just as the parties agreed . We have a
direct dispute between confidential Informant Terry and Grievant
McGrady as to virtually every salient point required to prove
Management's claims . In rendering this opinion, the Arbitrator
has avoided detailing each bit of evidence presented by either
side noted above . The complete recitation of alleged
inconsistencies and contradictions has been sufficiently
presented in the facts and contentions of the parties, I believe .
I note that the Union's advocate is generally correct
in his assessment of the traditional basis for assessing
credibility in Court . One crucial device is reputation for truth
and veracity . A second device is prior convictions of felonies
I
or misdemeanor crimes involving dishonesty or false statements .
A third is potential bias or interest . Prior bad acts that
reflect on credibility is another point of evaluation .
As to each and every one of these traditional criteria,
Grievant McGrady stands muster . By way of contrast, the
Confidential Informant Terry, fails under traditional standards
as to each of these points . Terry was a Confidential Informant
on the Postal Service's payroll to report on the misbehavior of
others . Although Informers certainly are not automatically to be
discredited because of the unsavory nature of their calling,
strong corroboration of their claims is traditionally required .
This Confidential Informant is a convicted felon and apparently a
drug addict . He has not achieved a status as a man whose
reputation for truth and veracity is acceptable in any relevant
community . Even Postal Inspector Atkins testified that Terry had
lied to him, although only over matters concerning "money ." To
rest the Employer's entire case on the weak credibility of this
accuser must mean that the Service should be prepared to have a
finder of fact reject Terry's story as not sufficient to provide
convincing evidence of guilt .
Perhaps most important in my decision to disbelieve
Terry is that he deviated here from procedure and instructions
when he did not take the person who was supposedly about to sell
him drugs to an area where the two Postal Inspectors could
observe what actually happened . All conversation was out of
eyesight of Inspectors Atkins and Jesse . Moreover, there is a
discrepancy in the alleged time when delivery of the marijuana
was supposed to occur, even on the face of the Service's own
documents . Last, the reference to "Faye" and not to Faith and
the lack of a last name in the conversation overheard by the
Inspectors , even if they are fully credited , detracts from the
ability to precisely identify Grievant as even being on the
premises on September 6, let alone the person who took the $200
from the Confidential Informant .
Consequently , on the basis of the total record, I find
that Management has not succeeded in proving that Grievant stole
$200 from the Government or that she agreed to a sale of
marijuana on September 6, 1984, or at any other time . Causing
one to lose her job by uncorroborated accusations by so
unreliable a witness as Jerome Terry and the exclusive reliance
on the hearsay evidence of Postal Inspectors listening to a taped
conversation between Terry and an unidentified woman named "Faye"
does not show that this Grievant committed any dereliction of
duty whatsoever . I so hold .
As the Union argued throughout this matter , Grievant is
either guilty of theft or she is not . If she has not been proved
guilty of theft, she is entitled to full back pay . The issues of
prior work record and mitigation only come into play if the theft
accusation has been proved . Accordingly , I find the Employer's
precedent Award is clearly distinguishable upon its facts and the
grievance should be sustained .
For all the foregoing reasons, the Grievant is entitled
to full relief and the grievance is sustained in its entirety .
VI . AWARD
For the reasons stated above , attached hereto and made
a part hereof as if fully rewritten :
1 . This grievance is sustained in its entirety .
2 . Grievant is hereby ordered reinstated, with full
seniority and all other benefits restored , including full
backpay. The personnel record of this Grievant shall have
expunged from it the improper dismissal action involved in this
case .
Elliott H . GoldsteinArbitrator
September 5, 1985