ARBITRATION OPINION AND AWARD PURSUANT TO ARTICLE 15 OF THE

NATIONAL AGREEMENT BETWEEN THE PARTIES

Case Nos'. W4N-5R-D 35514 ; 36063Seattle , Washington

April 16 1987

UNITED STATES POSTAL SERVICE, )

WILLIAM EATONand )

Arbitrator

NATIONAL ASSOCIATION OF LETTER )CARRIERS , AFL-CIO )

Removal of Henry Leon Boykin )1

APPEARANCES :

FOR THE SERVICE :

JULIAN F . HUNTERManager, Labor RelationsU . S . Postal ServiceP . O . Box 9000Seattle , Washington 98109-9994

FOR THE UNION :

JIM WILLIAMSRegional Administrative AssistantNational Association of Letter Carriers935 Oak Street , Suite AEugene , Oregon 97440

S

ISSUE AND EVIDENCE

This is an arbitration to determine the following

issue as stipulated to by the parties :'

Did just cause exist, as is required byArticle 16 of the National Agreement,for the Notice of Proposed Removal issuedthe Grievant under date of July 28 1986,and a Letter of Decision issued onSeptember 12 1986, for charge no . 1, AWOL,and for charge no . 2, failure toprovideacceptable medical certification? If not,what is the appropriate remedy?

Hearing was held in Seattle on April 16 1987 . At that time

the Grievant was fully and fairly represented by the Union,

was present throughout the hearing, and testified in his own

behalf . Following presentation of additional evidence by both

parties, the matter w . ;e Arbitrator for final and

binding determination upon oral argument at the close of the

hearing .

The Grievant has been employed by the Postal Service

since November 1965 . His removal was precipitated by absences

of eight hours on July 2 1986 and three hours on July 3 1986, and

for his failure to provide an acceptable medical excuse for the

absences while on restricted sick leave . It is stipulated that

he did fail to provide the certification as required . At the

arbitration hearing the Grievant testified that the reason was

that he started out for an appointment with the Dentist on

July 2, but began drinking on the way and failed to arrive at

the Dentist's office before closing . He appears to have come

2 -

to work the following day, cased his mail, and again left,

allegedly for a Dentist's appointment, which he never kept . He

agrees that he was repeatedly asked for certification, and that

as an excuse for not furnishing it he said "whatever came to mind",

knowing that he could not obtain valid certification . As a

result he was charged as being AWOL for the hours involved .

The Postal Service maintains that it has exhausted the

process of progressive discipline, that the Grievant has had at

least three fitness-for-duty examinations which found him fit for

duty, that he has been referred to PAR (EAP) as early as 1979, as

well as subsequently, that his attendance continued to be un-

satisfactory, and that the final incidents of AWOL, taken to-

gether with his prior record, justified his removal .

The Union in this dispute filed grievances over both

the Notice of Proposed Removal dates ~- said the Letter

of Decision dated September 12 1986, the two grievances' having

been consolidated for hearing in the present arbitration : The

Union advances on the Grievant ' s behalf the fact that he has

been found to be an alcoholic , that he , has successfully completed

an inpatient treatment program , that he is continuing a pre-

scribed program with Alcoholics Anonymous as well as other

treatment, and contends that he is now in a position to be a

productive employee .

The Notice of Proposed Removal and Letter of Decision

read, respectively , as follows :

3

UNITED STATES POSTAL SERVICESEATTLE FIELD DIVISION

DATE: July 28, 1986

OURREF: WED5R :JSanJose :sf :9994

SUBJECT: Notice of Proposed Removal

TO: Henry L. BoykinSSN : 539-28-4946Carrier, City or SpecialMain Office Station

P.O. Box 9000/Seattle, WA198109-9998

This is advance written notice that it is proposed to removeyou from the Postal Service no sooner than 30 days from thedate of your receipt of this letter . This action is based onthe following reasons :

1), AWOL : You have been charged as Absent WithoutLeave on the follow

07/02/86 8 Hrs . AWOL07/03/86 3 Hrs . AWOL

2) Failure to Provide Acceptable MedicalCertification : You requested 8 hours sic eave .on7/2/86 and provided one with medical certificationfor that absence which I deemed unacceptable . Iinformed you that the certification wasunacceptable and you told me you would obtainacceptable certification . I reminded you of therequirements spelled out in your Restricted SickLeave letter . On 7/3/86 you requested 3 hours sickleave and I informed you that you would -need toprovide medical certification . On 7/11/86, whenyou called the office, I reminded you about themedical certification for 7/2 and 7/3/86, and youstated you would bring it in . On 7/21/86, uponyour return to duty, I asked you if you had brought .the medical certification in . You replied no, butyou would try to have it by 7/22/86 . On 7/28/86, Icalled you at your VIMS Room and again inquiredabout your medical certification . You told me yourdentist was now on vacation .

Your failure to provide medical certification isunacceptable . You received a Restricted Sick Leave letter on8/4/84, outlining the requirements for submitting acceptable

4

Notice of Proposed Removal z

medical documentation for your absences .

The Postal Service is a service-oriented organization and, assuch, has commitments to its customers . Staffing levels arepredicted based on goals each unit is expected to meet,therefore, each position is a needed position . Unscheduledabsences can impact scheduling and reduce staffing, therebyimpacting our'commitments .

In addition, the following elements of your past record willbe considered in arriving at a decision if the charges aresustained :

1) You were issued a Letter of Warning on 1/9/85 forFailure to Follow Instructions - Failure to ProvideMedical Documentation - AWOL .

2) You were issued a 7 day suspension on 3/18/85 forUnsatisfactory Attendance - AWOL .

3) You were issued a 14 day suspension on 6/24/85 forUnsatisfactory Attendance - AWOL, and amended on7/3/85 .

4) You were issued a Letter of Warning on 12/19/85 forrn Follow Instructions - Unsatisfactoryc_ ;dance .

5) You were issued a 7 day suspension on 3/14/86 forFailure to Follow Instructions UnsatisfactoryWork Performance - Unsafe Practice .

6) You were issued a 14 day suspension on 6/26/86 forFailure to Follow Instructions - Unsatisfactory

,. Work Performance .

By your actions, you are in violation of the Employee & LaborRelations Manual, Sections :

511 .43 Em to ee Res onsibilities . Employees areexpected o maintain their assigned schedule andmust make every effort to avoid unscheduledabsences . In addition, employees must provideacceptable evidence for absences when required .

666 .8 1 Requirement for Attendance . Employees arerequired to a regular in atten ance .

666 .82 Absence Without Permission . Employeesfailing to report for duty on scheduled days,including Saturdays, Sundays, and holidays, will beconsidered absent without leave except in actualemergencies which prevent obtaining permission inadvance . In emergencies, the supervisor or proper

_ 5

Notice of Proposed Removal 3

official will be notified as soon as the inabilityto report for duty becomes apparent . Satisfactoryevidence of the emergency must be furnished later .An employee who is absent without permission orfails to provide satisfactory evidence that anemergency existed will be placed in a nonpay statusfor the period of such absence . The absence willbe reported to the appropriate authority . .

You and/or your representative may, review the material reliedon to support the reasons for this notice at 415 1st Ave . N .,

Seattle, WA 98109-9994, between 8 :30 a .m . and 4 :00 p .m . Ifyou do not understand the reasons for this notice, contact theundersigned for further explanation .

You and/or your representative may answer this proposal within10 days from your receipt of this letter, either in person orin writing or both, before Janice A . San Jose, 415 1st Ave . N .,

Seattle, WA 98109, between 8 :30 a . m . and 4 :00 p .m . Please call

442-6230 for an appointment . You may also furnish affidavitsor other written material to Janice San Jose. within 10 days

from your receipt of this letter . You will be afforded areasonable amount of official time for the above purpose if youare otherwise in a duty status . After the expiration of the10-day time limit for reply, all the facts ^in^the case,

.2ng any reply you submit, n fullconsideration before a decision is rein ._ receive

a written decision from Charlene Hecker .

You have the right to file a grievance under theGrievance/Arbitration procedures set forth in Article 15 of theNational Agreement within-14 days of your receipt of thisletter .

cc : Manager, Main Office StationOPFLabor Relations

6

September 12, 1986

WED5R :JSanJose :ra :9994

Letter of Decision

Henry L. BoykinSSN : 539-28-4946Carrier, City of SpecialMain Office Station

On July 31 . 1986, you were issued a Notice proposing toremove you from the Postal Service dated July 28, 1986, basedon the charge outlined in the Notice .

I have given consideration to your personal answer of August11, 1986 at which, you were represented by Bill Guiberson,NALC President and all others in evidence of record . I find,however, that the charges, as stated in the Notice of July

. are fully supported by the r n*_,your removal .

You stated you had only three unscheduled absences in 1986 :prior to the AWOL . While this is true, your overallattendance is not acceptable . You stated you could not seeyour doctor and he did not want to give you a slip because hedid not see you, and then he was on vacation . You weregiven plenty of time to submit acceptable certification andyou failed to do so,, and as a result were charged AWOL. Youare fully aware of this requirement and were on restrictedsick leave . You argue that you could not work while takingcodeine and tylenol, but your doctor did not verify this .You state you have had a problem with alcohol, . although youwere not AWOL as a result of alcohol, but rather a toothache . You stated you have been to EAP several times in thepast and had an appointment scheduled for August 14, 1986 . :You also said you knew you should get involved in AA and,wanted badly to be given an opportunity to correct pastmistakes . It is my opinion that the Postal Service has madeevery reasonable 'effort to help you correct your deficiencyand you have not responded . You have been sent to EAP andacknowledge going several times, but you have not followedthrough . Further, you have submitted no evidence to datethat you have started in a treatment program . In reachingthis decision I have considered the elements of your pastrecord cited in the Notice of July 28, 1986 . The action willbe effective September 16, 1986 .

7

The Postal Service is a service-oriented organization and, assuch, has commitments to its customers . Staffing levels arepredicted based on goals each-unit is expect to meet, ;therefore , each position is a needed position . Unscheduledabsences impact scheduling and reduce staffing , thereby,impacting commitments .

As a preference eligible, you have the right to appeal thisdecision in writing to :

Regional AdministratorMerit Systems Protection BoardSeattle Regional OfficeFederal Building9.15 Second Avenue, Room 1840Seattle, WA 98174-1001

within 20 days from the effective date of this decision . Ifyou appeal to the MSPB, you should state whether you do or donot wish a hearing and you should furnish me a copy of yourappeal . For further information on appeals procedures,contact the undersigned . Attached for your reference is acopy of the MSPB regulations and a copy of the appeal form .

If you 'appeal this action , you will remain on the rolls, but.-;duty status after the effective

action, until disposition of your case has been reachedeither by settlement or through exhaustion of youradministrative remedies .

If you appeal to the MSPB, you thereby waive access to any .procedures under the National Agreement beyond Step 3 of theGrievance /Arbitration procedure .

" You are entitled to a representative of your own choosingthroughout your appeal. You and your representative, if heor she is a U .S . Postal Service employee , shall be afforded areasonable amount of official time for preparation of yourcase if you and / or your representative are otherwise in aduty status .

C ar ene Hec erMain f ierManag ,

eC TIME /-' /7RECEIVED BY DATE ~6

Attachments : SPB ules & RegulationsMSPB Appeals Form

cc : SupervisorOPFLabor Relations

8

Prior Discipline

The six elements of prior discipline cited in the

Grievant's removal letter fall into . two distinct categories :

failure to follow instructions, resulting in unsatisfactory work

performance ; and attendance-AWOL infractions . The attendance

and AWOL discipline, apart from the incidents leading to the

Grievant ' s removal , all occurred in the first half of 1985 .

Most of the attendance infractions were similar to,

if not identical with , the present infraction . The Letter of

Warning issued on January 9 1985 included a charge of AWOL for

failing to submit medical documentation as required while on

restricted sick leave status , for 5 .8 hours away from work . The

seven day suspension issued March ~~ ~ :ree instances

of failure to provide medical documentation while on restricted

sick leave status for a total of approximately 22 hours . Similarly,

the 14 -day suspension issued June 24 1985 cited a total of 32

hours for which the Grievant failed to provide acceptable medical

documentation for absence while on restricted sick leave status .

The four instances of discipline for failure to

follow instructions also involved very similar circumstances .

The Letter of Warning of December 19 1985 involved failure of

the Grievant to process CPS mail on a daily basis , and failure

to process a number of change of address cards , thus delaying

mail . The-seven day suspension issued March l ; 1986 cited an

additional failure to process CPS mail properly , and failure to .

explain why he had not done so . The 14- day suspension issued

June 26 1986 was issued for the reason that the Grievant had

turned mail which was good as addressed into CPS, failing to

explain his reason to do so acceptably .

The Grievant testified that all of the infractions

cited were as a result of his having been "drinking for a long

time ." As he put it , there were " a lot of binges in there ."

Remedial Efforts

EAP Specialist Cheryl Fleming testified that EAP

records indicated that the Grievant had been referred to EAP

(PAR) three times in the past . The first was in October 1979,

at which time he made no -tructured program .`

Again in September 1980 he was referred , and did commit to a

structured program, with which , according to Ms . Fleming, he

failed to comply . He was therefore removed from the program

in December of that year . Ms . Fleming could not recall precisely

what that program called for . The Grievant was again referred

in September 1984 , and again made no commitment to a structured

program .

Seattle Main Office Delivery Manager John Judd testi-

fied that he was aware of at least some of these prior referrals .

In one case, he stated , the Grievant had been referred on the

clock . Therefore he was not referred again to PAR by Judd, for

the reason , , according to Judd , that the Postal Service is not

authorized to send an employee to EAP on the clock for a second

time .

10

The Grievant testified that he had little recall

of these past referrals , but did state that he had gone at least

once or twice to PAR on his own . He stated that his reasons

were "feelings of guilt from drinking", but that no structured

plan was ever offered to him .

Manager Judd testified that , as a result of his

quarterly review of sick leave usage in December 1985, he

scheduled the Grievant for a fitness -for-duty examination . The

Grievant was found fit for duty , although the examining physician

suggested that he consult an EAP Counselor . The Grievant main-

tained that the reason given to him for this reference was an

enlarged liver , and that nothing was said specifically about

alcohol or alcoholism by the physician at that time .

The Grievant testified that he subsequently con-

sulted John Peeples , the EAP Counselor to whom he was referred

that he had one visit , and that Peeples neither requested a

return visit nor referred him to any other Agency . According to

the Grievant , in that conversation, "He talked about drinking and

I listened ." The Grievant added, "That ' s all there was to it .

In March of 1986, according to Manager Judd, the

Grievant ' s sick leave usage was still unsatisfactory so that he

involved the NALC Steward, as well as a fellow Carrier, in an

attempt to discover what might be causing the Grievant's allegedly

unsatisfactory sick leave usage . Nothing of any significance came

of these efforts .

11

Alcoholism

The .Grievant tes tined that it was at approximately

the time of his removal letter , probably shortly thereafter,

that he finally became conscious of the fact that he was an

alcoholic . He stated that he realized he .was hiding bottles,

that he was not acting responsibly , and that he displayed other

symptoms of the alcoholic . Sometime in early August he once

again visited EAP Counselor John Peeples in his office .

During that visit Peeples recommended Betsy Gilbert,

a registered nurse in the ADAPT Alcoholic Recovery Program run

by Group Health Cooperative of Puget Sound . The Grievant

immediately called Ms . Gilbert, and made an appointment to see

' - beforee leaving Peeples ' office. "'th him some

literature published by AA .

The first meeting with Nurse Gilbert was cancelled by

her for reason of a minor injury , .and a new meeting was arranged

for a date perhaps some two weeks after the initial call from

Peeples ' office . The Grievant kept the appointment , received

additional literature and counseling , and was advised that a

second meeting should be arranged at which time the Grievant's

wife would accompany him .

At that second meeting the alternatives available to

him were explained to the Grievant , and he selected what he

described as an "intensified program " of inpatient treatment . It

was arranged that he would enter that treatment at an institution

known as Sundown M Ranch , which he was to enter in mid-September .

12

He testified that entrance was delayed due to, his father's ill-

ness , but th a he did enter the program on September 29 1986, and

continued the program until completed some 21 days later .

The Grievant said that he had his last drink in

August of 1986, at which time his family "ganged up on him",

which assisted in precipitating his realization and treatment .

He now follows up by going to AA meetings at least twice a week,

often three times a week . . He states that he also attends ADAPT

sessions approximately once every 10 days .

During a meeting on approximately August 11 1986 the

Grievant advised Labor Relations Representative Janice San Jose

of his admission that he was an alcoholic, and of his decision

to undertake treati^ `that he believed this to

have been the first time he told management of his condition,

and of his intent to seek treatment .

By letter of August 27 1986, Nurse Gilbert of the

ADAPT program notified Mr . .Peeples of the EAP program regarding

her evaluation of the Grievant, which she initially accomplished

on August 18 1986 . She described his condition as "alcoholism"

which had "progressed into the late middle stage of the disease ."

At that time Nurse Gilbert contemplated simply an intensive out-

patient treatment, in addition to the ADAPT program . As in-

dicated, the Grievant himself later opted for the more intensive

in-patient treatment .

The after treatment referral form from Sundown M Ranch,

dated October 16 1986, indicated, in essence, that the Grievant

13

has made considerable progress, but still requires "heavily

structured and involved after care including a minimum of 3

AA meetings weekly" and "continued counseling ." The report

stated that he had "just now begun doing something here", but

that he was still "operating on much distrust-- much delusion,

denial left ."

The counselor preparing the report stated that, "despite

what he may want I doubt if (the Grievant) has experienced

sufficient pain to recover ." EAP Counselor Fleming, testified

at the arbitration hearing, interpreted these final remarks to

indicate that the Grievant had not "truly accepted" his alcoholic

condition . She indicated, however, that she had not herself

spoken with or counseled the Grievant .

For his part, the the opinion that

he would be "100% better than I was" as a Postal Service employee,

says he has ceased drinking entirely, that he feels good not being

under the influence of alcohol, and that he has undergone con-

siderable stress since his treatment which, in the past, would

have led him to drink, but which he successfully, resisted doing .

Disparate Treatment

Main Office Station Manager Charlene Hecker, who wrote

the Decision Letter of September 12 1986, testified that her

review of the Grievant's record led her to conclude that the

Postal Service was "meeting blank walls" in trying to help the

Grievant . She testified that she herself felt "very frustrated"

for the reason that it had not been possible to get the Grievant

14

to help himself . Her review of his contact with EAP (PAR),

according to Ms . Hecker , convinced her that the Grievant did not

want help and therefore could not be helped . She based this

on the fact that he had quit prior referrals without participating

in a structured program .

Ms . Hecker was asked what she meant by her reference,

in the Letter of Decision, to the Grievant ' s "personal answer

of August ii, 1986 ." She stated that she had not herself met

with the Grievant on that date , but had relied . on the report

of the meeting as forwarded to her by Ms . San Jose . Local

Branch President , William Guiberson, who also attended the

August 11 meeting , testified without contradiction that the

revealedd his alcoholic state at <, . A

stated that he intended to take steps to correct that condi-

tion .

Ms . Hecker stated that she had talked with the Grievant

both before and after issuance of the removal letter , and that in

the meantime she kept close contact with EAP Counselor Peeples .

She stated that she did so "with crossed fingers" in the hope

that the Grievant would get started on an effective program . She

was aware that he had been referred to the ADAPT program on

August 14 , but noted that he had not gotten into a structured

program as of the date of the Letter of Decision . She was not

aware that the Grievant had been accompanied by his wife to see

the ADAPT Counselor on August 28, nor did she inquire as to

precisely what he ,inight have been doing to correct his alcoholic

14

condition between that time and the September 12 date of the

Decision Letter .

Asked whether she had considered the provisions of

Article 35 of the National Agreement , Ms . Hecker replied that

in her experience where ADAPT counseling reveals the need for

treatment, and where the patient is willing , that treatment

proceeds forthwith , which had not been the case with the Grievant .

The Union introduced into evidence a "last chance

settlement agreement " between the Postal Service and another

Letter Carrier dated December 23 1985 . That Carrier was an

alcoholic , had received progressive discipline for attendance

problems , and had finally been removed from the Service . He

was accorded his "last chance " under certain strictly defined

condition , including treatment for alcoholism , regular attendance

and other stipulations .

Union Steward Charles Houston testified that during the

Step 1 procedures he had requested that the Grievant be given a

dimilar last chance , that the Step 1 answer was delayed a number

of times while the employer considered the request , and that it

was finally denied in the Step 1 answer .

Deliveries Manager Judd testified that , in his opinion,

the situation involving the "last chance" employee was consider-

ably different from that of the present Grievant, particularly

in the fact that all of the other employee " s disciplinary action

had been for attendance ; while in the Grievant's case job perfor-

mance was also involved .

15

DISCUSSION

Postal Service Argument

The decision to remove the Grievant was based upon

progressive discipline , which was justified by the record . He

had received two written warnings , two seven day suspensions, and

two fourteen day suspensions . He was on restricted sick leave

when he failed to produce a medical certification for his absences

of July 2 and July 3 1986 even after repeated requests to do so .

The question of alleged disparate treatment was not

argued prior to the arbitration level , and therefore is not

admissible . There is no such argument presented in the moving

papers .

..ryument had been legitimately raiseu,

there is no fair comparison between the Grievant ' s record and

that of the single employee with whom the Union seeks to compare

the Grievant . That employee ' s discipline was all attendance-

related , while the Grievant has work performance deficiencies as

well .

The record is full of efforts on the part of management

to help the Grievant . He was referred to PAR as early as 1979 .

In 1980 he agreed to a structured program , but failed to carry

it out . Several further references to PAR , later EAP , proved

equally fruitless .

In addition , his Supervisor tried to help the Grievant

as recently as six months prior to his removal . He enlisted the

16

Union Steward and .a fellow employee, to no avail .

The provisions of Article 35 are that "favorable

consideration" is to be given to participation in rehabilitation

programs when discipline is assessed . The Grievant participated,

and despite numerous efforts there was no improvement. Article

35 does not impose a requirement on management that, once notice

of removal is given, it must be rescinded because of subsequent

participation in a detoxification program .

ELM 873 provides discretion on the part of management

to reinstate an employee who has taken care of a drug of alcohol

problem . In the present dispute there is no convincing evidence

that the Grievant has taken care of his problem, nor does Section

.73 mandate reinstatement in any event .

Here the Grievant's first appointment at Group Heaith

was on August 18 1986 . Neither at the first step grievance

meeting on August 8, nor at the subsequent meeting on August 11,

was any mention of the Grievant's alcoholism made to management .

That was for the reason that he had as yet taken no action .

EAP Counselor Cheryl Fleming testified that the

report from Sundown M Ranch shows that the Grievant has not yet

fully accepted the fact that he is an alcoholic, even though he

says he has . He has suffered insufficient pain to recover .

according to that report .

While he was to have followed a "heavily structured"

program, including a minimum of three AA sessions a week, the

evidence is that he does only two, sometimes only one session a

week . He was to attend group health sessions , and appears not

17

to have done so diligently . There is no showing that he is trying

to involve himself in the heavily structured program required .

The report from Sundown M Ranch is , even at best,

an effort at self help after the event . The employer has made

every reasonable effort to correct the Grievant's deficiencies,

progressive discipline has been properly applied , and, finally,

just cause for termination has been demonstrated .

Union Argument

The Union concedes that the Grievant did not present

the certification requested . He went either to visit the

Dentist or to get certification , began drinking instead, and

failed +n On ac requested . What the Union does argue is mitiga-

tion of the penalty because of the disease of alcoholism, and

because the Grievant has received disparate treatment compared

with another employee in similar circumstance .

Article 35 requites that treatment for such a disease

as alcoholism be "considered favorably " when discipline is to be

assessed . Management argues that this applies only to the point

of issuance of the discipline . It is the Union ' s contention that

this includes the grievance process as well. -

The purpose of the grievance process is to consider

new information , or new arguments, not simply to ratify with-

out examination the discipline which has been . assessed . There

would be no point in the grievance procedure otherwise .

18

Here the Grievant and the Union did show that he had

admitted to the condition of alcoholism, and that he had decided

to do something about it . At the very latest management was

aware of this at the meeting of August 11 1986, which occurred

even before the Step 1 answer .

The Grievant is salvagable as his credible testimony

demonstrates . He has not had a drink of alcohol since August of

1986 . He is serious , and he has made a genuine commitment about

which management knew to remedy his past deficiencies .

The Grievant went to EAP without referral, contacted

the ADAPT nurse from the office of Counselor Peeples the same

day, and set up an appointment with her . Though the first

-.--'r4ntment was postponed through no fangt of the Grievant's,

subsequent appointments•of August 18 and 28 were met .

First the Grievant went alone, received AA literature .

and admitted his condition as a first step . He then went to-

gether with his wife, had .the options explained to him, and

voluntarily elected the more rigorous in-patient treatment

which was scheduled .for mid-Stepember . Unfortunately his father's

illness caused a .delay until September 29 at which time he did

enter the Sundown M Ranch and completed a 21 day course of in-

patient treatment .

The disparity argued by the Union is that another employee

at the same station, with the same problem ; and working under

the same Supervisor, was given a "last chance", while the Grievant

was not , even though extensive discussions were had between

Union and management on the Grievant's behalf in this respect .

19

It is the Union ' s position that once a last chance program is

in place , all employees are to get the same chance to participate .

The employee who was given a last chance had five

prior offenses , including written warnings and suspensions of

seven and fourteen days , . all relating to attendance . The

Grievant had three attendance related disciplinary actions,

and three work performance disciplinary actions . It is sub-

mitted that these are comparable records . The Grievant is an

alcoholic , a fact which has been proved at the arbitration

hearing , if not stipulated to . That he sought treatment after

the fact of his removal notice is not decisive in considering

mitigation . Past conduct bears upon the penalty , and upon

mitigation .

It is true that the Grievant had been referred to

PAR in the past , and that successful treatment djd not occur .

The major difference is that the Grievant did not admit in the

past that he was an alcoholic , and that he needed treatment .

The counselor who .±estified at the arbitration hearing was not

aware of what structured program the Grievant was supposedly

to have undertaken in 1980, so that we do not know the facts of

that situation . Nor had that witness even talked to the

Grievant as a basis for her conclusion that he is not success-

fully on the road to recovery .

The Grievant is an employee of 21 years service, he

is 53 years of age, and he is near retirement . He has shown

that he has admitted his condition, and that he is serious in

correcting it .

2 0

Despite what the Postal Service argues , the`Grievant

has substantially complied with the rigorous requirements for

attendance at AA meetings up to three times a week , as well as

the requirement that he participate in Group Health sessions .

He has control of his disease , and deserves another chance .

The Union requests that the Grievant be reinstated,

that he be awarded full back pay , that he be made whole in all

other respects , and that the Arbitrator retain jurisdiction

concerning these remedies .

Conclusions

The Postal Service argues that corrective discipline,

thrr disciplinary steps , has been

has failed ,, and that just cause therefore exists for removal.

In addition , it raises the argument that disparate treatment

cannot now be advanced by the Union , for the reason that the

argument was not presented at prior steps of the grievance pro-

cedure .

The Union ' s response is that disparate treatment was

raised at prior steps , that the Grievant has been the victim of

disparate treatment , and that , even though the offense which

precipitated his discharge was committed as alleged , the under-

lying . cause of the offense , and of the other offenses with which

he is charged , is his condiditon of alcoholism which he has now

admitted to and taken measures to rectify .

21

. The question of presenting new evidence or argument

at the arbitration level has been discussed in a number of Postal

Service cases , including a recent decision of the present Arbi-

trator , also arising in the Seattle Post Office , but involving

the American Postal Workers Union, rather than the National

Association of Letter Carriers . Case No . W4C-4R-D 32309,

April 10 1987 . The conclusion is that evidence and argument

offered for the first time in arbitration cannot, as a general

rule , be considered .

Inthe present dispute the evidence is that at the

earliest stages the Union asked for the Grievant a "last chance"

opportunity similar to that afforded to another employee in the

same work unit . The question was discussed at length prior to the

step l decision being rendered , the employer ultimately denying

to the Grievant that opportunity . While the details of those

discussions were excluded from the arbitration record , the fact

that such discussions occurred demonstrates that the essential

eieniert of comparative treatment , or disparate treatment, had

been properly raised .

Even so , the Union is on weak ground arguing that once

a policy of granting a last chance is in place , all employees

must have equal access to its benefits . The difficulty with this

argument is that one last chance agreement does not a policy

make . Even if it did, it would be necessary to analyze carefully

the case of any individual claiming a "last chance " right under

any such policy . Suffice it to say that , in the present dispute,

22

the Arbitrator does not find the record of the Grievant and

the employee to which he wishes, to be . compared sufficiently

comparable to consider deciding the matter on that basis .

In effect, the Grievant in this dispute has been taken

through the steps of progressive discipline from warning, to

seven day suspension, to fourteen day suspension, on not one,

but two distinct infractions . All of his attendance-related

infractions, nearly identical to the infraction leading to his

removal, occurred over a year prior to the infraction leading

to his removal . The second set of offenses, involving unsatis-

factory work performance all occurred within the year prior to

his Letter of Removal . The Grievant and the Union relate the

offenses to ~oholic condition, contending tl '?

the penalty should be mitigated accordingly . it is that con-

tention upon which the case must turn .

Article 35 of the National Agreement provides that

voluntary participation in'an EAP program "will be considered

favorably" in disciplinary action proceedings . The critical

issue which is joined in this dispute is whether disciplinary

action proceedings include proceedings up to the .final Letter of

Decision, assuming that the original disciplinary action has been

grieved. The Union presents a compelling case that, at least in

certain circumstances, the provisions should apply until the

grievance procedure has been exhausted.

In Case W-1N-5H-D 2804 , Arbitrator Carlton J . Snow

agreed to evaluate, as a mitigating factor, the grievant's defense

23

of alcoholism , asserted as a defense only after the incident

leading to his removal had occurred, together with his long

employment record . The Arbitrator ultimately denied the grievance,

but on the ground that there was insufficient proof that the

grievant there was, in fact , an alcoholic .

Arbitrator William E . Rentfro, in Case No . NC-W-9582-D

cited with approval the following passage of Arbitrator Paul

Prasow :

It is true that in most grievancearbitrations , the basic issue to be deter-mined is whether management ' s action wasproper based upon the facts known at thetime the action was taken . Normally theclock stops at that moment , and anythingthat occurs subsequently is irrelevant.However , there are occasions , especially

ascharge cases , where events ocring after the incident giving rise to thegrievance are given some weight by arbi-trators . For example , the conduct of anemployee after he has been discharged maybe considered significant either for itsmitigating or aggravating influence indetermining whether the penalty shouldbe modified . ' Texaco , IncL and Oil Chemical&' Atomic Workers International union,Local 1-128 , 64 - 2 ARB ¶8443 .( 1963).

Arbitrator Rentfro applied the principles stated by Arbitrator

Prasow in a case where it was found that , but for the grievant's

alcoholic condition , the events leading to his removal would

not have occurred . Significantly , Arbitrator Rentfro added that,

"The time does come when an employer may reasonably conclude

that his efforts to encourage rehabilitation have failed and

that prospects for substandard improvement are so slim that

the employment relationship must be terminated ." The grievant

24

in that case , however , was reinstated without back pay-

A case referred to in the present Arbitrator ' s recent

Seattle Post Office case cited above , is instructive. In

Case No . E1C-2D-B 6142 , 1983, Arbitrator G . Allen Dash ordered

reinstatement where treatment for alcoholism had been under-

taken after notification of removal . The basis in that case

was the arbitrator ' s conclusion that management had been remiss

in not recognizing the symptoms of alcoholism clearly apparent

in the grievant ' s attendance record . A similar conditional re-

instatement was ordered by Arbitrator Feldman in Case No . CBC-

4E-C 5038 .

The present Arbitrator denied reinstatement in the

t attle case for the reason that th- treatment the grievant

therein allegedly underwent remained wholly unknown both to

management and to his own Union representative until the grievance

procedure had been exhausted . As there noted , no evidence had

been made available "which . would show his condition and treat-

ment, which had it been timely presented , conceivably could have

altered the complexion of [the] dispute . The complexion of

the present dispute is substantially different .

Here the Grievant voluntarily sought EAP counsel very

shortly after his Notice of Removal , met with various counselors

as scheduled , and voluntarily elected the most intensive

remedial program available , the in-patient treatment at Sundown

M Ranch . Moreover , despite assertions to the contrary, he has

substantially complied with the post-treatment requirements of `

25

AA attendance, and of attendance at Group Health sessions .

There is no evidence to dispute his testimony that he has been

"dry" since August of 1986, and that he has gone through severe

.emotional stress without again resorting to the use of alcohol .

It is true that the Sundown M Ranch final evaluation

shows that he is still at risk, which the Grievant himself

readily acknowledges . These are such facts as should be "con-

sidered favorably" under the requirements of Article 35 .

Let it be stated at once that favorable consideration

under Article 35 by no means guarantees an employee who has under-

taken treatment after removal notice automatic reinstatement .

It most certainly does not . The interesting factors in this dispute,

however, are that the Grievant annears to have been doing precisely

what his Station Manager "crossed her fingers" and hoped he would

be doing to right himself, and that his efforts in this respect,

communicated to the Postal Service in a timely manner, were dis-

regarded .

I The most salient factor is the open admission of the

Grievant that he is an alcoholic . That is the crucial fact

that any alcoholic must confront before treatment is possible,

and a fact which the Grievant had failed to confront prior to

receiving his Notice of Removal . Once he faced this fact treat-

ment became possible, and the "blank walls" which Station Manager

Hecker had confronted in the past showed promise of opening to

new possibilities .

26

As I interpret relevant Postal Service arbitration

•a

precedents, several requirements must be met where alcoholism is

diagnosed, and treatment for that condition undertaken, after

removal if such considerations are to mitigate the removal

penalty . The first requirement is that there be convincing

evidence that the employee is an alcoholic, and that he or she

fully accepts that fact . This requirement has been satisfied

in the present dispute .

The second requirement is that the alcoholic employee

present convincing evidence that counseling and treatment, with

a reasonable prospect of success, have been undertaken . That

.requirement is also met in this dispute .

m`- t`&rd requirement is that the first `.°^ -'-^r*r

shall have been timely communicated to .the employer, and that the

employer shall thus have been afforded a fair opportunity to make

determinations in regard to the validity of the claimed alcoholic,

condition, and to evaluate-the treatment and prospects for recovery .

In the present dispute the evidence is that reasonable efforts

were made to inform the employer in these respects, but that

these efforts fell on deaf ears , even while the Grievant's

supervisors were supposedly hoping for evidence that effective

measures were being taken by the Grievant to deal with his illness .

Finally, it must be clearly demonstrated that the

alcoholic condition is reasonably related to the conduct charged,

so that controlling the alcoholism presents a good possibility

of eliminating the charged work deficiencies . That requirement

is satisfied in the present dispute by the long history of PAR

27

and EAP referrals, by the recurring theme of alcohol, by the

Grievant's credible testimony, and even implicitly, if not

explicitly, by the amployer's handling of the dispute .

These tests are not necessarily definitive in all cases,

nor would meeting them necessarily guarnatee reinstatement in

all circumstances . Rather, they demonstrate what this Arbitrator

takes to be the emerging consensus of arbitrators in attempting

to deal with this difficult, and all too prevalant, problem .

AWARD

Just cause existed, as is required by Article 16 of the

National Agreement, for the Notice of Proposed Removal issued the

Grievant under date of July 28 1986 ; .at the time the Notice was

issued .

Just cause did not exist for the Letter of Decision issued

on September 12 1986 for the reasons stated in the foregoing opinion .

The Grievant shall be reinstated without back pay, but with

restoration of seniority, the period between the dates of removal

and reinstatement to be treated as a disciplinary suspension .

Upon reinstatement, the Grievant's disciplinary record

continues under the relevant conditions of the National Agreement,

to include the disciplinary suspension assessed in the present Award .

The Arbitrator retains jurisdiction for 90 .days in the

event that any dispute should arise as to the interpretation or appli-

cation of this Award .

WILLIAM EATONArbitrator

May 15 1987