s

4-gREGULAR ARBITRATION

IN THE MATTER OF

ARBITRATION BETWEEN ) OPINION AND AWARD

United States Postal Service ) Case(s) No .S4N-3C-D-33477

Employer ) and

and ) S4N-3C-D-36511

National Association of ) J . Erber, Greenwood, Ms .

Letter Carriers, )

Union ) Irvin Sobel

Arbitrator

APPEARANCES

For the Postal Service :

George Whitten

Labor Relations Representative,

Memphis, Tennessee .

For the Letter Carriers :

Ben Johnson

National Business Agent,

Nashville, Tennessee .

HEARING

The matters referred to above were heard by the above cited

arbitrator on March 11, 1987 at Greenwood, Mississippi . The parties

were accorded .full opportunity to present evidence and cross-examine

witnesses . Since the issue of arbitrability was raised by the

Union as a threshold issue, the first part of the hearing was devoted

entirely to that matter, following which the substantive issues

were argued . At the conclusion of the hearing the parties made

closing arguments, waived the filing of post hearing briefs, and the

arbitrator took both matters under consideration .

THE THRESHOLD ISSUE :

FACTS IN CASE ;

On May 27, 1986 (received May 29th, 1986) the grievant, Joe M .

Erber, FTR Letter Carrier of Greenwood , Mississippi, was issued a

Notice of Proposed Removal by Superintendent of Collections Charlie

D . Chatham . That removal was based upon "continued failure to follow

instructions concerning Postal Safety rules and regulations", and

"failure to meet the requirements of your job assignment ."

After the issuance of the Notice, the Union through its

President , the afore cited grievant , filed a grievance claiming that

"the Letter of Proposed Removal was punative ( sic) and without just

cause ." The first and second Step Appeals were heard respectively on

May 30th ( Supervisor Chatham ) and June 2nd ( Postmaster Barnes), and

upon the second Step denial , received on June 13th , the Union moved

the grievance to the Step 3 level .

On June 27th , 1986 the grievant received (8 :44 A . M .) a letter

from Superintendent Chatham . It stated :

"This is to notify you that the propsed removal dated May 22,

1986 received by you on May 27, 1986 is hereby rescinded ."

2 .

On the same date received and signed for by Erber at the

identical time namely 8 :44 a .m . June 27, the grievant was issued a

second Notice of Proposed Removal . That Notice , issued on June 25th

which is before this arbitrator, is identical with its May 27

precursor in its relevant parts, namely the specification of the

charges and the elements of past . record, but adds to that first

Notice contractually necessary, but omitted paragraphs delineating

the grievant's rights of appeal .

On October 23rd the Service issued the following 3rd Step Appeal

decision :

Investigation into this matter reveals that the proposed removal

was rescinded effective June 25, 1986 signed by Mr . Charles

Chatham, Supervisor, Delivery . Inasmuch as the action was

rescinded it is Management's position that the removal action

and the grievance is now moot .

The Union, citing a favorable decision by Arbitrator Peter

Di Leone (S1C-4E-D-34608) in a case which invoked, what it deemed, a

virtually identical issue and set of circumstances, argued that

because of the June 27th recission the instant grievance be dismissed

on grounds of prior settlement of the matter . It further contended

that once the grievance had left the Greenwood Postal Office (on ar

about June 13) it was out of that entity's jurisdiction and any

disposition of those charges such as that signed by Wayne Ray at Step

3 must be regarded as final . Were this not so the Employer, by

rescinding a weak case before Step 3 could send multiple versions of

the same charge(s) thus, constituting double jeopardy . The integrity

3 .

of the collective bargaining process dictates that each party must

live up to its settlements even if based upon either a mistake or an

initial technical error .

The underlying basis for the precedent cited by the Union was

that at the time of recission of the Notice, neither the grievant who

received the Letter of Recission, nor the Union Steward who co-signed

the agreement with the originating Supervisor were demonstrably aware

of the existence of a second letter . In the case decided by Di

Leone, the second roughly identical letter was issued "a day or so

later ."

In the context of the instant grievance such was not the case .

Grievant Erber, who, in his capacity as Union President, had written

and signed the 2nd Step Appeal, received both the Letter of Recission

and the second Notice of Proposed Removal at the same time

(8 :44 A.M . He and the Union were officially aware that the removal

action was still "alive", and the only reason for recission of the

original Notice was the Employer's desire to prevent it from being

"thrown out" for not initially apprising the grievant, a veteran, of

all of his options .

Since the grievant was well aware when he received the Letter of

Recission from Chatham that a revised, corrected Notice had already

been issued there was no need, as argued by the Union, for Chatham to

have stated in his recission decision, that the first Notice was

being rescinded in favor of a second technically correct one . That

same observation is valid at the 3rd Step level, since the two

grievances, one the revised Notice, the other the original one were

4 .

simultaneously heard (September 29th) and disposed of (October 23rd) .

The fundamental fact is that the grievant and the Union, at the

moment of recission of the 1st notice, knew that the removal action

was still alive . The existence of a well known (cited by the

Elkhouri's in each of their editions) arbitral principle, namely to

resolve any doubts in favor of hearing and resolving the basic

substantive issue on its merits, also clearly leads to the conclusion

that the matter is arbitrable . The following substantive issue thus

remains before this arbitrator .

ISSUE :

Was the removal of Joe Erber for just cause under the National

Agreement? If not, what is the appropriate remedy?

FACTS IN CASE :

On June 25, 1986 (received June 27th), the grievant was issued

the following Notice of Proposed Removal by Charles D . Chatham,

Superintendent Collections and Delivery at the Greenwood Post

Office . The relevant part of that statement follows :

This is to notify you that it is proposed to remove you from the

Postal Service no earlier than 30 days from the date you receive

this notice . The reasons for this proposed action are :

Charge 1 : You are charged with continued failure to follow

instructions concerning postal safety rules and

regulations . On April 25 , 1986, while on

official duty as a City Letter Carrier, you

failed to stop at a stop sign at the corners of

W. Gibbs and Cotton Streets in Greenwood , MS . and

5 .

ran into the side of a privately-owned vehicle,

causing damage to both the postal and non-postal

vehicle . This was your second at fault accident

within a calendar year .

On 2/6/ 86 and 2/7/86, you were issued PS Form

4584 for operating your vehicle in an unsafe

manner and for parking in a no parking zone .

On 1/16/86, you completed refresher driver

training as recommended by your supervisor .

Despite Management's efforts to correct your

driving habits through additional training, you

continue to drive in an unsafe manner, fail to

follow safety rules and regulations, and you are

charged accordingly .

Charge 2 : You are charged with failure to meet the

requirements of your job assignment . As a result

of two at-fault accidents within a one-year

period, your SF-46, Government Driver's License,

was revoked at 5/9/86 . Your job as a City Letter

Carrier requires an SF-46 and as a result of

revocation you have failed to meet this

6 .

requirement, and you are charged accordingly .

The following elements of your past record have been

considered in taking this action :

1 . You were issued a 14-day suspension on February 21,1986,

for failure to follow safety rules and regulations .

This was reduced to a Letter of Warning due to

administrative error .

2 . You were issued a 14 day suspension on August 29, 1984,

for failure to follow instructions . This was reduced to

a 7-day suspension .

3 . You were issued a 14 day suspension on July 26, 1983,

for failure to follow instructions . This was reduced to

a 7 day suspension .

You and/or you representative may review the material

relied on to support the reasons for this notice at the

Greenwood Post Office , 200 E . Washington St ., Greenwood,

MS>, between the hours of 8 :00 AM and 5 :00 PM zMonday

through Friday . If you do not understand the reasons for

this notice, contact Mr . William G . Barnes, Step 2

Designee , for further explanation .

7 .

On July 3, 1986 following Mr . Chatham's First Step Denial of the

grievance, the Union filed its Second Step Appeal . In that

statement, Erber affirmed :

Letter of Proposed removal is punative (sic) and without just

cause . Greivant (sic) was issued another notice of removal on

5/29/86 which was withdrawn on 6/27/86 . Greivant (sic) has been

subjected to cruel punative (sic) actions by the issue of (two)

letters of removal . Said removal of a veteran Postal Employee

with approximately twenty (20) years service with the U .S :P .S .

is not in the best interests of the Service .

The grievant had already filed a lengthy twenty (20) point by

point rebuttal after the first (May 27th) Notice of Removal .

In her Notice of Decision, dated July 29, 1986 Barbara King,

acting for Billy Roberts SCD Manager of EandL/R at the Tupelo, Miss .

Sectional Center, reiterated and then affirmed the validity of the

charges . In addition, she stated that the grievant's possible

reappointment to an assignment with non-driving duties in the clerk

craft had been considered , but "no vacancy exists at this office ."

The letter further states that although "you have been allowed to

work during the notice period, the Postal Service has incurred far

more than a de-minimis cost factor by allowing this work . It would

not be cost effective for the Postal Service to continue in this

fashion ."

8 .

The Service's third Step Denial of the grievance, dated October

23, 1986, stated :

A careful review of the file reveals that the actions by the

supervisor in issuing the Letter of Proposed Removal were

proper . The carrier has a long tenure with the Postal Service .

In addition, he is a union official ; therefore, he should be

well aware of his obligations to his duty assignments and the

postal safety rules and regulations . He has completed refresher

driver training and management has made every effort to correct

his inefficiencies ; however, without any results . In addition,

he has several elements of past record concerning the same

subject matter .

Therefore, based on the above, it is my contention that the

proposed removal is proper and the grievance is denied .

Position of the Parties :

Introduction :

Since those facts and argumentation introduced by the parties

relevant to the arbitrator' s decision will be stated by him in the

body of his Opinion no result other than increased verbiage would be

served by their reiteration under separate attribution . Accordingly,

only a bare bones summary of each party's position will be presented

at this juncture .

The Union' s Position :

In essence the Union denied that the grievant had violated any

Postal Service safety driving regulation during the incidents cited

in the Charges . It argued that he was neither an unsafe driver nor

9 .

was his twenty year record replete with driving irregularities . In

fact, the opposite is true as attested by his Safety Council

Certificate for long term (18 years) safe driving without an

accident, which was initiated by the same Postmaster who was trying

to remove him. In fact, the specific violations alluded to in

Charge 1 are either false or invalid . the grievant was not "At

Fault" in either of the two accidents used as the basis for removing

his SF-46 (Postal Driving License ) . He was never informed of his

first alleged "At Fault", citation of August 6, 1985, and was

improperly adjudged for the second one of March 25, 1986 . Moreover

he was illegaly denied Union representation at that March "At-Fault"

hearing, and the judgement reached was based on false premises which

were reiterated in the charge . Despite unproven allegations

regarding the alleged higher costs inflicted upon the Service as a

result of his inability to drive his route, he not only effectively

discharged his carrier duties on foot but did so on a cost efficient

basis . The grievant was also treated disparately in that, in prior

circumstances when SF-46's were removed, either the carriers were

somehow allowed to continue to drive or were assigned temporarily to

other duties . That June 25, Notice also deliberately cited as a past

element, a non-existant Letter Warning (March 17,,1986) .

In addition to arguing that the Letter of Decision was

punitively delivered only a day before the grievant's discharge, the

Union contended that the decision was rendered without its issuer

having read the grievant's point by point defense . The Charges

alluded to in that decision had been so reworded that the Letter of

10 .

Decision thus, failed to address the original charges . Above all,

the Union argued that the grievant was a long service, highly

diligent, and efficient carrier, whose only offense was that he had

leadership qualities, noticed by the Community in general and his

Union colleagues in particular, but deprecated by the Employer . His

long term effective service as President of the Union, put him in an

adversarial relationship with Postmaster Barnes and upon the latter's

accession to his office the grievant' s career has been beset with

numerous attempts to discipline him in an effort to establish a basis

for his Removal . This instant grievance represents the culmination

of that process .

The Employer's Position :

The Employer's contentions have already been stated more

effectively than in any summary by this arbitrator, in the already

cited Notice of Removal , Letter of Decision and Third Step Appeal

denial, respectively . In essence , the Employer contended that the

grievant is, and has been, an unsafe driver and only its long time

tolerance and willingness to overlook his abberant driving habits,

which endangered not only the Service's interests but also the

Community's safety, had prevented his prior removal from its employ .

Rather than either trying to remove him for his activities or

treating him disparately the Employer made every effort to find him a

job he could perform without a valid Government driving license . In

fact, it kept him on his route at great cost for four months after

his second no-fault accident .

11 .

Arbitrator ' s Discussion :

Notwithstanding , a plethora of testimony regarding the

grievant ' s twenty year tenure in the Service ' s employ, especially in

regard to the grievant ' s driving record, the fundamental questiosn

which this arbitrator must resolve all directly relate, with the

exception of the referred to but uncited August 1985 incident, to the

more recent incidents cited in the Notice of Proposed Removal . The

most fundamental question is ; 1) Did the events of February 6 and 7,

and the accident of March 25 , 1986 provide proof that the grievant

was an unsafe driver who habitually violated Postal Service safety

rules and regulations?

A related question ensues, should the response to the above

cited question be in the affirmative, namely ; Are the safety

breaches and violations sufficiently serious to justify removal under

the aegis of that part of Article 16 .1 which states , " no employee may

be disciplined or discharged except for just cause such as . . . . . . or

failure to observe safety rules and regulations"?

The other fundamental questions relate to the second charge .

These are ; 1) Was the Employer justified in removing the grievant's

SF-46 and in its absence was the grievant unable, as alleged by the

Employer , to meet the . necessary requirements of his job?

Interrelated but less fundamental questions emerge from whether

the grievant was treated disparately as part of an attempt to remove

him because of his effective Union activities , and the Employer's

allegedly improper citations and utilization of the most recent prior

element?

12 .

Opinion and Award :

The Employer in its attempt to lend credence to its charges

regarding the grievant' s specific violations of safety rules on

February 6, 7 and on March 25, 1986 attempted to prove that these

incidents were not atypical of Erber's twenty year driving record

which was one beset with accidents and instances of carelessness .

The Union, of course, introduced countervailing evidence .

Notwithstanding, the invocation of historical evidence, by both

parties, covering the grievant's career with the Postal Service which

gave the arbitrator insights of some significance, the resolution of

the instant grievance depends upon the validity of the Charges, cited

in the Notice .

Even the designation of an accident as an "At -Fault" one,

although that classification has inferential significance, does not

by itself automatically prove that safety rules and regulations have

been violated by the driver . In short, the Employer must prove that

the grievant, as stated in the Employer' s Notice of Decision, either

"failed to observe or disregarded " Postal Service safety rules and

regulations . It (the Employer) must cite which practices the

grievant engaged in which constituted such a failure, and/or the

regulations which were violated in the process . While not citing the

specific regulation(s) which was (were ) violated, the Notice clearly

indicates the nature of the safety violation with which the grievant

has been charged . It states; "On April 25th, 1986 while on official

duty . . . . .you failed to stop at a Stop sign at the corner of W . Gibbs

and Cotton . . . .and ran into a privately owned vehicle . That above

13 .

failure to stop was the only specific violation attributed to the

grievant in the Notice, but at the hearing, the Employer introduced

evidence drawn from its investigation of the accident regarding the

grievant's alleged failure (at the Gibbs-Cotton intersection) to look

in both directions . Had the Employer proven (Mgt . Exh . #1) either

"failure" it would have constituted proof of a violation of its

safety norms despite its failure to state the specific rule or

regulation violated by the grievant in the Notice .

The Employer's version of the accident was based upon its

investigator's (Donald E . Felts) interviews with the driver of the

struck vehicle, (Steve Johnson) a passenger in that vehicle, (Rosie

Judson), and an on-looker Arthur Duncan, who claimed to be a relative

of Johnson . When interviewed by Felts, at the scene, Johnson did not

mention that the grievant ran the stop sign, but four days later when

filing his injury report (ostensibly to Chatham) Johnson stated ; "The

truck apparently (underlining by the arbitrator) didn't stop at the

stop sign ." That latter statement . was in contradiction to his

statement on the spot to Officer Gilbert, but the "apparently" may

have been the result of an attempt to align his version with that of

the other witnesses . The two witnesses , one a passenger , and the

other, who saw the accident from a vantage point approximately 100

feet from the intersection, stated that the grievant had failed to

stop at the sign, but Felts could not locate a named third witness,

who had no ties to the driver Steve Johnson .

Donald Felts , the only trained Employer ' s Accident Investigator

in Greenwood , equivocated in regard to whether Erber had stopped . He

14 .

stated in his report; "It was ny opinion that the Postal Driver, Joe

Erber, was at fault . Whether he stopped or not, or was distracted in

any way, the private vehicle had the right of way ."

The Postal Service's version of the grievant's culpability was

completely contradicted by the Greenwood, Police's official report

of the incident . It is relatively inconcievable that the Police

report was not in the Service' s possession at the time it introduced

its formal chargeson May 27th, but that report was neither consulted

nor referred to in Management's report of the incident, (M-3) and

thus, was not a factor in Felts' conclusion .

When an arbitrator is presented with two reports, one from an

unbiased official police source, and the other an internal , less

detached and potentially self serving source, he must choose the

former . Thus, the signed statement of the investigating Police

officer ( Un . Exh . 41) must be regarded by this arbitrator as the only

conclusive one, since not only must Officer Gilbert be regarded as

the only detached observer but also his is the official investigatory

version of the incident . That statement follows :

This is to certify that I have been a Police Officer for the

City of Greenwood for twelve (12) years . I have personally

known Mr . Erber during this time, as well as prior thereto, and

have observed almost daily, Mr . Erber performing his duties of

delivering mail .

On Friday, April 25, 1986, at approximately 12 :45 P .M ., I was

called to investigate an accident at the corner of Gibbs and

Cotton Streets in the City of Greenwood . I interviewed both

15 .

drivers of the vehicles involved, and the facts are noted on the

official accident report completed by me concerning the

accident .

I learned from the drivers of both vehicles involved that Mr .

Erber came to a full stop, looked'both ways and proceeded into

the intersection . Mr . Johnson stated to me he observed Mr .

Erber stopping and looking both directions, and did not

understand why Mr . Erber did not see his vehicle .

During the years of observing Mr . Erber in the performance of

his duties, I have never had an occasion to see him using unsafe

or unlawful driving practices, but have observed his manner of

driving to be lawful, safe and courteous at all times .

I make this statement of my own free will, not under duress, or

for any personal reasons except to set out the circumstances of

this incident upon Mr . Erber's request that I do so .

Thus, while the grievant's April 25th accident may have been an

At-Fault one, he did not in the course of that procedure violate any

Postal Service regulations either cited or implied, which could be

linked to what could be called a commonly accepted unsafe practice .

This arbitrator will not discuss at this juncture either the

validity of the alleged safety breaches cited in the Notice under the

rubric of the Form 4584 . The circumstances through which that Form

originated also will not be scrutinized at this stage . Both matters

were subjected to invidious interpretation by the Union .

16 .

Assuming arguendo that the citation in the charges of the Form

4584 might be deemed an unintentional error , the Union contended that

such a harmless construction could not be placed upon the citation of

a 14-day suspension as a prior element . Not only did the citation

of the 14-day suspension of February 1986 in the Notice of Removal,

constitute a serious procedural breach but also the Employer

knowingly had falsified the disposition of that grievance in order to

give credence to its contention that the grievant was an unsafe

driver who escaped the consequence of his mis-and mal-feasance as a

driver only by a technicality .

Countless arbitrators have consistently ruled that it is a

significant if not prejudicial breach to cite as a Past Element in a

Notice ~f Dis=igline anything other than the final disposition of a

particuler matter . It is only after the matter has been scrutinized

and decided by the parties through the grievance procedure , that the

final relevance of the action is determined . Although arbitrators

have permitted the introduction of testimony and supporting

documentation during the hearing, relating to the initial penalty

imposed by the Employer , when certain conditions of settlement

reached during the grievance procedure have been breached, they have

been consistent in their rulings against the insertion of such 1/

1/ In a recent removal case this arbitrator permitted the

introduction of evidence bearing on a previous removal action which

had been reduced in the grievance procedure .

17 .

information in Notices of Disci2line_ All the past elements listed

in the Notice were deficient in this regard .

However, the fundamental breach involved a mistatement by the

Employer which the Union contended could only be construed as a

deliberate one intended to create a false impression . The Notice

of Removal states under elements of past record :

"You were issued a 14 day suspension on February 21, 1'986 for

failure to follow safety rules and regulations . This was

reduced to a Letter of Warning due to administrative error ."

The record of that grievance ( S4N-3 -D-27162) completely belies

that statement . In fact, the record clearly indicates there should

be no citation at all .

In fact, Postmaster Barnes' own written statements contradict

the prior element listed by Chatham in the Notice . On April 10th in

an attempt to settle the grievance, Postmaster Barnes after the 2nd

Step meeting at which Chatham was present, wrote Union Steward Pat

Elliot making a proposal of settlement identical to that cited in the

Notice. He stated : (Un . Exh . #2) .

After reviewing the facts presented . . . . .it is apparent that an

administrative error was made . . . . . . . .

Due to the above facts and a review of the case, it is proposed

that if the grievant will withdraw the EEO complaint concerning

this suspension Management will pay lost monies for the 14 days

lost pay and reduce the suspension to a Letter of Warning .

Pat Elliot, after consulting the grievant responded as follows,

18 .

on the face of that same communication : "Respectfully decline your

offer, (ss Pat Elliot) . The Union (and the grievant) felt that

agreeing even to that reduced discipline would be tantamount to

conceding that the grievant had in fact, engaged in those safety

violations cited in the Form 45e4, on which the February 21st action

was based .

Postmaster Barnes, in his Letter of April 17, 1986,

acknolwledged the Union refusal, but nevertheless, reiterated his

intent to compensate the grievant without making any reference to a

Letter of Warning . He stated, in a letter to Joe Erber :

Since the offer submitted at the Step 2 dicision(sic) by

management was refused, management is still aware that an

administrative error did occur in this process, therefore an

adjustment is being made to pay you for monies lost during the

time you were off and the 14 day suspension file is being

removed from the records .

This letter clearly indicates that the Employer's representative

at Greenwood not only acknowledged the Union's refusal to acceed to

the LOW, but had disposed of the issue without any mention of the

Letter of Warning . Yet, a month later Chatham, who was present at

the Second Step Appeal , signed a Notice of Removal which both

mentioned a LOW and the 14 day suspension . Nevertheless, since the

Union regarded this action as not truly dispositive of the grievance,

the matter was brought to Step 3, at which, on September 12, 1986,

the matter was settled by Wayne Ray (Management) and Collier James

(Union) .

19 .

They stated :

It is resolved that the Suspension is removed in total from the

grievant's record based on the fact that the grievant was not

given the required 10 day notice as required by the National

Agreement . He is entitled to full back pay .

Thus, a month before the Notic e was issued by Chatham,, his own

superior had unilaterally removed the 14 day suspension from the

files, in doing so making no reference to a Letter of Warning . That

action by Postmaster Barnes , and the September 12 agreement must be

treated as signifying, for official purposes that no disciplinary

action resulted from the violations cited in the Form 4584 . The

record thus, certainly cannot be construed to imply existence of a

Letter of Warning . That fact and the double jeopardy nature of the

Form's purported utilization first as the basis for a 14-day

suspension and then for Removal is thus dispositive of the Form

4584 .

In its testimony the Employer's witnesses attempted, employing

vivid adjectival hyperbole in the process, to portray the grievant as

a chronically reckless, careless and accident prone driver . In that

context numerous allusions were made regarding serious accidents

during the grievant's twenty year career in the Service . Despite

this portrayal, much of it from hearsay, only one 1979 accident was

specifically attributed to Erber, and no substantive proof that it

was an at fault accident was introduced . In addition statements were

made by Employer witnesses about a rollaway accident , but this

accident was not documented . Management also introduced evidence

20 .

from the grievant's own statement in 1977, (M-10) that the grievant

had five speeding and parking violations, only two of which resulted

in fines, and two accidents prior to that time . The above use of

evidence is totally inconsistent with (Paragraph 4(b), pg . 7) of

Management's Instruction (EL-830-3-11 of 10/28/83) which states :

"When a revocation suspension or reissuance of a SF-46 is under

consideration only the ors-duty record will be considered ."

The Union introduced what it deemed more solid evidence which it

argued completely contradicted Management's litany of hearsay, rumor,

and vague recollections . 'Especially noteworthy, was the grievant's

18 year Safe Driving Award, issued the grievant in 1984, by the

National Safety Council . That safe driving record, encompassing the

grievant's entire 18 year period in the Postal Service, was issued

over Postmaster Barnes' signed recommendation to the Safety Council .

If we augment that statement by Officer Gilbert's already cited

statement based upon his twelve (12) year knowledge of the grievant's

driving . record, a sufficiently different picture than that presented

by Management emerges .

Even if we were to place the same very serious construction upon

the_grievant's accidents as the Employer-including, therein, the

alleged but undocumented one around 1979-when the 20 years duration

of the grievant's service is taken into account neither a larger than

average frequency of accidents nor proven safety violations was

established . The grievant's own statement of 1977 indicating five

traffic citations (one speeding fine) and two very minor accidents

(none at fault) all of which took place while driving a Postal

21 .

Service vehicle, pale into comparative insignificance when one

considers the grievant was thirty two at the time he made that

statement and had been driving for approximately 15 years . In

addition to its already noted failure to sustain its specific Charge

1 safety violations, Management also was unable to prove that the

grievant's 20 year Service driving record was one of such

carelessness, recklessness, irresponsible and dangerous behavior,

that he should not be allowed on the street .

The propriety of the Employer's removal action, thus, must rest

both upon whether it had justification for the removal of the

grievant's'"Government Driving license (SF-46), arid, if such were the

case did the grievant's concomitant inability to drive mean that he

could not carry out his assigned dates without imposing more than "de

minimus" cost upon it .

The "At-Fault" designation of both accidents was challenged by

the Union . The first, namely, that of August 8, 1985 was primarily

challenged on grounds that the attribution of responsibility to Joe

Erber was without foundation and contrary to the known facts of the

incident even as established by the Employer' s own less than

disinterested investigatory report . The Union also contended that

gross procedural violations took place, in that ; 1) The determination

of fault was not made by any duly constituted body , especially an

officially sanctioned Accident Review Board ; 2) The judgement of "At-

Fault" was never communicated to the grievant and that designation

was never discussed with him either informally or officially ; 3) The

grievant thus, was effectively denied his right of appeal, in fact,

the only interaction he had over the matter was on August 7th,

22 .

when he was told by Charles Chatham who had investigated the accident

"not to worry ." and ; 4) The accident was never formally charged

against the grievant until May 29, 1986 when the Notice of Proposed

Removal was issued . In fact, the Notice while specifically citing

the March 25th incident as the 2nd "At-Fault" accident in a year,

never made any direct reference to the first incident or gave its

date, namely August 6th .

The statements of the Employer's representatives, Charles

Chatham and Don Felts who conducted the investigation of the August

6th "accident", are both inconsistent with the At-Fault judgement

rendered by the latter . Chatham's statement follows :

"Heavy rain caused road to flood . Pickup truck driver

recklessly caused carrier to pull over to curb. Moved over to

avoid collision with vehicle . Flooded street . Heavy rain . Curb

at this point 15 inches high Brick and concrete . Street is very

narrow at this point ."

The statement of Donald Felts, the Greenwood Postal Service

"official " accident investigator essentially reiterated Chatham's

statement . He affirmed :

"The street was wet and it was raining rather hard . The Postal

vehicle , a 1/2 ton 1984 RHD AMC , was going North on Dewey St .

another vehicle turned off River "Road onto Dewey Street ( going

South) . This vehicle was being driven recklessley . Dewey St .

is narrow (18' from curb to curb ) . Behind the curb lis a brick

retaining wall approximately 15 inches high . Mr . Erber moved

over as far as he could to avoid the oncoming vehicle .

23 .

There is a parking area at 109 Dewey Street . This area also has

the brick retaining wall . The accident occured where these

walls meet . At this point the curb on the street has dropped

off until it is almost even with the street . The wall was built

in such a way that the brickes protrude out even with the street

side of the curb .

The Postal vehicle was damaged on the right side between the

side door and the rear wheel well . Damage is estimated at

$100 . . There were no injuries and no other damage .

In my opinion , the weather and possibly a reckless driver

contributed to this accident, but the driver was at fault in

that he hit a fixed object ."

When asked in cross examination, why he reached conclusions

which seemed so contradictory to and inconsistant with the great bulk

of his report, Felts replied that during his training in the Postal

Service course, through which he attained his Investigator's status,

he was told that it was an invariant rule when a driver struck a

fixed immovable object-even one which was relatively obscured-that

he/she was at fault . According to his recollection it was a National

Safety Council regulations . Certainly there is no Postal Service

regulation to this effect .

This arbitrator attempted to ascertain, from either his local

Police accident investigators, campus security officers , or even

insurance adjusters , whether such an invariant rule existed . All of

them , some of whom maintained contac t with the National Safety

Council , denied knowledge of such a rule and none said they would

24 .

adhere to it if such existed . According to them at best,

alleged rule is a very rough rule of

that

thumb starting point from which

determination of fault, if any, is based upon the particular

circumstances of the accident .

Upon this arbitrator's reading to them of Felt's report, all of

the three to whom my query's were specifically addressed, said that

this was an accident for which the driver could not be blamed, and in

the circumstances the Employer should have regarded itself as

fortunate that the damages were so slight .

The denial of due process to the grievant through the Employer's

failure to notify the grievant of the "At-Fault" designation for

approximately ten months and then only indirectly and inferentially,

was neither mitigated one iota by the Service's internal regulation

that formal Accident Review Panels are convened to render such

judgement if the damage exceeds $100 .00. The grievant has every

right to receive notice of, and appeal, any decision especially one

adverse to him which could either lead to or be used as a basis for

future discipline . In fact, he was informed "not to worry" about

the matter by the very supervisor who approximately ten months later,

used that accident as a key link in his Removal decision .

This arbitrator will not dispute the substantive propriety of

the Tupelo, Ms. Accident Review Board At-Fault designation for the

March 25, 1986 incident . However, he questions its procedural

adequacy . The grievant was denied his requested Union representation

at the hearing, and the Employer's argument that the hearing body

GJ .

was purely an administrative one is neither tenable nor in accord

with Employer practice, based on prior arbitral decisions in other

jurisdictions . The fact remains that the actions taken by that

"administrative body" through the almost instantaneous removal, after

the hearing, of the grievant's SF-46, were plainly part of the "Road

to Removal " . If the grievant were denied Union representation before

the Accident Review Board panel his Weingarten rights should have

been satisfied by some form of pre-disciplinary hearing , at which his

Union representative was present .

Inasmuch as the "At Fault " designation for the August 6th accident

was found improper, both from a substantive and procedural

standpoint , the Employer ' s revocation of the grievant ' s SF-46 was

without foundation . This fact renders the question of whether the

procedural improprieties , involved in denying the grievant Union

representation at the Tupelo Review Board hearing, were sufficiently

grave to nullify the March 25th "at Fault" designation, moot .

Assuming arguendo that the Employer had reasonable cause for the

revocation of the grievant ' s SF-46 did his inability to drive provide

concomitant justification for the Service's Removal action on grounds

that the grievant was unable to perform his assigned responsi-

bilities? A related question is what , if any , were the respons-

ibilities of the Employer to the grievant as a consequence of that

revocation , and did the Service meet them?

The already cited Management Instructions of October 28, 1983

(Mgt . Exh .8) defines those responsiblities . It states :

26 .

When the SF-46 of a bargaining unit employee is revoked or

suspended every reasonable effort must be made to reassign the

employee to nondriving duties in that craft or other crafts .

Given the time span which must necessarily elapse, after any

disciplinary request eventuates in one subsidiary Postal Service unit

is transmitted to a Sectional Center, is then investigated and a

Notice of Removal issued (May 27th), it is apparent that the Request

for the Notice' s issuance must have eventuated from G3reenwood almost

simultaneously with the receipt of the Revocation of the grievant's

SF-46 (sent Friday, May 9th) . This comparison of dates r educes Ms .

King's statement in the Notice of Decision, that the Employer had

made every effort to find the grievant an assignment (inferentially

in another craft) he could perform befor e initiating its removal

action, to a meaningless pro-forma one, designed to demonstrate the

Employer's attempt to conform to its responsibilities .

The Employer, however, contended that almost immediately after

the suspension of the grievant's SF-46 on April 15th it had met its

responsibilities in good faith by converting the grievant's route to

a walking one, but unfortunately the grievant's performance during

the four month period conclusively established that without his SF-46

he could not effectively carry his assigned route without imposing

more than de-minimus costs upon it . However, as previously noted, the

Employer must have made its decision to terminate early in May .

Thus, the actual "trial period" was relatively miniscule in

comparison to the four month period the Employer claimed to have

accorded Erber .

27 .

The Employer while conceding that the grievant was able to

complete his walking route argued that in so doing he imposed upon

what it regarded as a more than de-minimus additional wage cost of

one (1) hour per day . This Employer estimate was based upon the

twenty five (25) to thirty five (35) minutes per day for requested

Parcel Post delivery which now had to be assigned another carrier,

it

and the additional half hour encompassed in the grievant's walking

from the station to and from his route .

Given certain offsetting time considerations in moving his

vehicle a more reasonable estimate of-the additional time would be

closer to a half hour, mainly the time necessary for another carrier

to deliver the parcel post . Even this estimate overlooks the

possible additional time a replacement and less experienced carrier

would need for casing the route, as well as the probable no longer

required costs both direct and indirect of maintaining a Postal

Service-vehicle .

In short, the Employer fell far short of proving that the

grievant imposed more than de-minimus cost upon it . The additional

costs it was able to prove even overlooking possible offsetting

costs, were of such "de-minimus " magnitude that they failed-to

justify the Employer's charge that the grievant was unable to carry

out his assigned duties without driving .

Because of the inablity by the Employer to validate its charges

in its Notice of Proposed Removal of June 25, the Union

countercharges of disparate treatment and procedural error will not

be accorded in this Opinion the relative attention devoted

28 .

to them at the hearing . However, these issues are significant and

require some further discussion .

The fact that the grievant, a 20 year veteran, was the only

Greenwood employee at least within Postmaster Barnes' administration

to be removed for inability to .perform his job as a result of removal

of his SF-46, while not by itself proof of unequal treatment does

establish some presumption of disparateness . Equally significant in

this regard is that some carriers, as established by the testimony,

have had two or more accidents within a year, some deemed more

serious than the grievant's, without either having their SF-46's

revoked or being brought up for charges . At least two other carriers

had their SF -46's removed, yet were not issued Notices of Removal,

and inferentially were allowed to keep driving during the period

before a valid driving permit was re-issued . Thus, while a

difference in treatment between individuals does not necessarily

prove disparatness, since individual circumstances can vary

significantly, the Employer's explanation failed to develop an

acceptabl e and credible rationale for its differentiation .

The Employer's version of the circumstances surrounding the

issuance of the Form 4584 and the ensuing abortive 14 day suspension

also evoked some conjecture . Mr . Ballard, the Service's District

Safety officer based at Tupelo, was in Greenwood conducting "Safety

Workshops", and while standing with the local Vehicle Safety officer,

Don Felts, and a number of Supervisors, happened to notice the

grievant leaving the station and engaging in certain unsafe driving

practices . He and his cohort(s), thus, followed the grievant and

29 .

observed a number of safety violations including mainly failure to be

in proper lane while approaching intersections, unsafe lane changing,

failure to signal when leaving curb and doubl e parking all of which

were cited in the original Letter of 14 day suspension . The Union

challenged Ballard's "accidentally" happening to be looking out,

noticing and picking out the the grievant j ust as he was leaving the

station and established that many of the practices engaged in by the

grievant, in the heavy trafficed, limited parking space , . one way

streets around the Post Office, were commonly accepted ones winked at

by local Management . No other carrier had been issued a 14-day

suspensioon for such practices, in fact, the Employer was unable to

cite any prior actions of any sort . The inability of the grievant to

be accorded an audience with Ballard to discuss his alleged

shortcomings and the bureaucratic run-around he received when he

wanted to schedule that meeting which, according to local management

would have to be held at Tupelo, and the fact that when the grievant

was in Tupelo the day of his Accident Review Board hearing, Ballard

was "too busy" to see him, all in tandem , point to the grievant being

treated disparately .

In reaching this conclusion of disparate treatment this

arbitrator is neither reaching nor does he find it necessary to reach

any further conclusions regarding either the alleged personal animus

towards the grievant attrubuted to th e Employer ' s representatives, or

local management ' s alleged discrimination against him because of his

effective Union leadership . All that was established at the hearing

was the requisite sufficiency of proof for disparate treatment .

Given that neither of the charges could be sustained, nor was

there a valid reason for removal of the grievant's SF-46, the

grievance will be sustained in toto . In that context the arbitrator

must thus, determine what would render the grievant "whole" and must

take into consideration the Union's request for a 21 percent rate of

interest on any pay to be restored . The Union based its request,

which was an integral part of its 2nd stage Appeal (s) upon the

interest costs imposed upon the grievant because he had to mortgage

his home to replace the income lost as a result of his severance from

the Service .

This arbitrator, although he very rarely has acceeded to an

interest payment clearly has, as evidenced by Arbitrator Ben Aaron's

precedent setting 1983 decision CHIN-5-FD-2560) the authority t do

so should he find it necessary to "make the grievant whole ." In this

context, because he has no doubts that the grievant had to incur .

added interest costs, as a result of the Removal, the arbitrator will

so'order at the rate of 10 percent of the total wages lost . This was

approximately the prevailing rate of interest for mortgages during

the period in which the grievant "took out" the loan . This rate is

substantially below the 21 percent requested and does .nbt compensate

the grievant for the anxiety, mental anguish, abuse to his own

dignity, and sense of worth which are worth noting but which can

neither be estimated nor even compensated .

31 .

Award :

The grievance of Joe Erber is hereby sustained . He will be

restored to full duty as expeditiously as possible after the receipt

of this Award . The grievant will be awarded back pay at his

prevailing hourly rate for eight (8) hours a day, or forty (40) hours

per week, for all time lost between the date of his severance and

full restoration to duty . Included therein, are all automatic

his

increases in hourly pay which might have accrued to him during that

period . The grievant will receive interest on the amount of back

at an annual rate of 10 percent . The grievant's SF-46 will be

pay

restored forthwith, as well as all the seniority which he would have

accrued had he been in continuous service . Back payment of premiums

for all pensions , insurance , and other funds from the day of the

grievant ' s discharge to the date of restoration to full duty will be '

made by the Employer .

All monies earned by the grievant during the period, including

any Unemployment Insurance receipts , will be deducted from the wages

to be restored. Final settlement will not be made until the grievant

files an affidavited account of all monies earned by him during the

period he was severed from the Service . Interest will be paid upon

the amount of the final wage settlement .

April 18, 1987

Tallahassee , Florida This is a certified true copy

of Arbitration Award

Irvin Sobel , Arbitr for

32 .