P .M . WILLIAMS 5/18/83 Modified
Removal - Refusal to Obey Direct Orders
& Leaving Work Area Without Permission
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/1/ 77s (S/C-J4i-,
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IN THE MATTER OF THE ARBITRATION
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REGULAR ARBITRATION
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Case % S1C-3W -D-14775
Grievant :
John Kelly
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Between
UNITED STATES POSTAL SERVICE
And
AMERICAN POSTAL DARKERS UNIQq
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Hearing : April 12, 1983
Location :
West Palm Beach, FL
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Arbitrator :
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P. M . Williams
APPEARANCES : Tony Montanez , Labor Relations Representative,
for the EMPLOYER.
James E . Fouts, National Representative, Clerk Division,
for the UNION.
DECISION AND AWARD
BACfl UND :
At the time of his removal the grievant was e[gloyed as a Full
Time LSM Distribution Clerk at the Main Post Office, West Palm Beach,
Florida . In its pertinent part the Notice of Removal of September 30,
1982, contained the following language :
The reasons for this removal are :
Charge 1 . You are charged with refusal to obey direct orders and
leaving the cork mom area without permission .
On 9-24-82 you were assigned to perform duties as a machine distribution clerk at the West Palm Beach Post Office . On this date, I
was consulting my plans for MPLSM rotation with three of my subordinates . On this date, at approximately 2000 hours, you left your assigned cork area and come over to where I was discussing my plans with
my subordinates . You approached me in the presence of my subordinates
and asked me if I felt good about taking bread out of your wife's
mouth . You then asked me if it made me feel like a man . I then asked
you where you were supposed to be working . You ignored my inquiry and
responded that I could suspend you every month if it made me happy . I
again, asked you where you weze supposed to be working and again you
failed to reply . You then turned around and walked away toward another
..moo- L repeat J rc yutsLiia Lc you three times ane. ?°_k& ?Y2 to
stop and explain to me where you were suppose to be working and where
you were going . You failed to respond and continued walking away . I
then gave you a direct order to stop and explain to me what you were
doing away from your work area without permission. In view of your
reluctant attitude, I directed you to leave the building . I then
instructed two of my subordinates, J . D. and A . C ., to be sure and
place you in an administrative status and escort you out of the
building . I then dent over to advise your supervisor of your status
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"when I received a call over the walkie talkie equipment from Supervisor D that you had refused to leave the building and he was inquiring
if he could summon the police which he did . Shortly thereafter, I
observed you approaching me with my subordinate A . C . You went past me
and A . C . advised me that you just refused to leave the building .
On 9-24-82, Supervisor D and Supervisor of Mails, A . C ., were asked to
be sure to escort you out of the building as per ny instructions . They
escorted you as far as the Data Site where you asked what you had done
that was so bad . Supervisor D reiterated my instruction and advised
you that you had failed to respond to my direct orders . He also advised you that your refusal to follow ny instructions had given me no alternatives . You than said to Mr . D ., "I am not leaving, he cannot make
me leave, I didn't do anything" . He then instructed you to leave the
building or the police would be called and you refused to leave . While
Mr . D was making arrangements to call the police, he observed you going
to the LSM area . Instead of leaving the building as directed you went
to see your shop steward .
I again went to you and in the presence of
the shop steward ordered you to leave . I even asked the assistance of
your shop steward, G. M., to convince you to obey my instructions without further incident. You refused to listen to me or your shop steward
advise and instead you went around to the console side of ISM #1 . Supervisor D again gave you a direct order not to enter the LSM work
area . You again ignored his instructions and proceeded to relieve the
machine operator fran her machine where you sat doom and proceeded to
key mail . You ignored your shop steward's advise and refused to stop
keying mail and leave the building . Supervisor of Mails, T . C ., then
shut off the console in order to stop you from keying mail . You then
got up from the console and stated you were going to operation 030 to
work . Supervisor D again gave you a direct order not to enter the 030
area . You ignored Supervisor D's instructions and went over to operation 030 and sat down at the case . I then advised you that you were
not authorized to work mail at 030 . Your shop steward G . M. asked to
be allowed to speak to you and proceeded to advise you of the consequences . You proceeded to the swing room to pick up your lunch container where you argued with your shop steward . You were again required to be given a direct order to leave the Postal premise .
The following elements of your past record have been considered in
taking this action :
1 . You were issued a 6 -days suspension on 9-24-82 for failure to follow
instructions and insubordination .
2 . You were given a 6-days suspension on 6-17 - 82 for unsatisfactory
attendance .
3 . You were given a letter of warning on 6-14-82 for failure to iuliOw
instructions which was placed in a one year review provided you
committed no similar offense .
4 . You received a letter of warning dated 2-9-82 for unsatisfactory
attendance .
FOSITION OF THE PARTIES :
United States Postal Service :
The Employer contended that the grievant had a history of obeying
only the instructions he saw fit to obey, ignoring the others . It said
his refusal to obey Tour Superintendent S's direct orders and the orders of 2 other supervisors as well, when coupled with his prior record
constituted just cause for his removal . It asked that the grievance be
denied .
American Postal Workers Union :
The Union said the Tour Superintendent overreacted to the series
of events which occurred on the evening of the 24th, because he was
unaware the grievant was on a regular break and could be using the
aisle which passed the group of supevisors . It said the grievant was
suffering from labile hypertension and work stress and that his having
just been advised of the 6 - day suspension immediately before he saw the
Tour Superintendent his illness caused him to act somewhat irrationally at the moment . It noted that the 6-day suspension was overturned
by an arbitrator's award after the removal, thus the incident of the
24th was his first offense rather than a second offense of failing to
obey direct orders and/or instructions . It said the penalty of removal
was too severe for a first offense of this nature because it was punitive rather than corrective in nature . It asked that the grievance be
sustained, with the grievant being reinstated and made whole for all
earnings lost .
ISSUE : "Was the removal of the grievant of September 30, 1982, for just
cause and in accordance with the provisions of the National Agreement,
and if not what is the proper remedy?"
OPINION :
The grievant's version of the incidents of the 24th did not vary
significantly from that described by the Tour Superintendent in the
Notice of Removal . The question is, or so it seems to the undersigned,
is there an explanation for the grievant'5 bizarre behavior or should
it be taken pure and simply as a demonstration of his insubordinate
attitude toward the supervisors involved that evening? If it is the
latter his removal should be deemed for just cause because there can be
no doubt about the fact that he had a duty to follow reasonable orders
directed at him by known supervisors, and here he did not cb so over a
15 to 18 minute period . If it is the former and there tends to be a
reasonable explanation for such recalcitrant behavior, the question
then becomes, is the cause for such conduct sufficiently beyond the
control of the employee to say that he should not be held entirely
accountable for the misbehavior?
The record shows that in mid-May the grievant requested a light
duty assignment from his duties as an ISM operator . It also shows that
he had asked his supervisor to allow him to work as a mailhandler,
rather than as an ISM operator, whenever possible . Both requests were
not granted . Tb support his request for the light duty assignment the
grievant gave the Employer a statement for his doctor dated 5/20/82, it
said :
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"To Whom it may concern :
Re : John Kelly
Mr . Kelly was examined y me on 5/ 73/82 . He was found to have labile
hypertension secondary to stress . The patient feels that nud7 of his
stress is caused by his duties at work and fells that it would be
relieved if allowed to change his duties .
I do reornend that he be given other duties to see if this makes a
difference in his blood pressure.
Sincerely,
Signed :
Marvin Arenstein, D.O ."
As is noted in the Notice of Removal when the grievant approached
the Tour Superintendent the latter was talking with 3 other supervisors . The record shows that when the grievant failed to answer the
question of where he was supposed to working and began walking away
from the group despite being told to " stop" , the Superintendent asked
the other 3 people to come with him as he walked after the grievant .
Only 2 of the supervisors went with the Superintendent, one remained
behind to "stay at the phone" , to quote her testimony at the hearing .
She said she did so "because [grievant ] was not acting in a rational
manner, and I didn't know if there was going to be a problem ." She
also said that "as far as I could ascertain [ grievant ] was a acting in
a very irrational manner , and I didn't think he should be on the floor
after that ." It was she who called the police after Supervisor D asked
her too, and it was also she who called the police a short time later
and told them not to come to the Post Office when she was advised the
grievant had left the building .
It may be said therefore that at least
one of the witnesses to the beginning of the events of the evening of
the 24th perceived at the outset that the situation was not a normal
one, and she re -affirmed her perception by unhesitatingly calling the
Police upon being asked to do so y a supervisor who was her peer, and
not her superior.
The undersigned does not believe it necessary or desirable for him
to fully detail all of the reasons why he reaches the conclusion that
just cause for the grievant ` 5 removal did not exist in this case . He
will however discuss the rrore irrportant ones . He believes when the
content of the Notice of Removal is coupled with the testimony of the
supervisor that is quoted above , it is apparent that the grievant's
conduct was not normal , and also that there is cause for saying he
chculd not be held entirely responsible for his behavior .
The g=ie•m.•:t
:iourly was agitated after tiling ttnlrl he was to be
suspended for 6 days and the record shows he was wanted to make the
abut Superintendent , who he believed responsible for the suspension,
aware of his feelings . ( It is to be noted the 6 day suspension was
later deemed to have been issued without just cause , thus it cannot be
said his anger is wholly indefensible .) The record also shows that he
was on a first name basis with the Superintendent and that he had had a
few encounters with him before when he felt a need to express his convictions about a ratter . The grievant was known to all of the 4 supervisors when the encounter began, and he was not known to be of a violent nature , rather he was known more because of his religious convictions .
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While there was no expert medical testimony given at the hearing
to confirm such a diagnosis, because the grievant was described as
"being very irrational", to the point of the supervisor indicating she
wanted to stay near a phone rather than follow after him as she was
instructed to do, the undersigned believes it obvious that something
unusual happened to the grievant on the 24th . He also believes a very
plausible answer for the happening was that the grievant suffered a
hypertensive attack which began when he received notice of the immproper
suspension, and which was increased try the potential encounter with the
Superintendent, and which was made much worse by the highly stressful
situation of the latter ordering him to stop, to answer the question of
where he was supposed to be working, and then directing that he leave
the building because he did not respond but rather walked away .
The record shows that the grievant's doctor provided him with
medication to keep his blood pressure under control and that he failed
to take it on a regular basis . The reason for this failure was not
disclosed . It may be said therefore that while his behavior may have
been the result of hypertension he nevertheless failed to utilize a
means provided him to escape the bad consequences of his condition . It
may also be said that he is not without fault in the matter even though
a situation beyond his control probably precipitated it thereby relieving him from full responsibility for his bizarre behavior . The undersigned believes it appropriate that he direct the grievant is to be reinstated to his former position without loss of seniority, but that the
reinstatement is to be without pay or fringe benefits . The grievant is
to be deemed to have been on a disciplinary suspension for the period
after November 5, 1982, until his return to work, which shall be not
later than 7 days after the date of this award, and he shall be admonished that any subsequent failure to obey direct orders, at the option
of the Employer, shall be cause for his removal .
On the basis of the entire record in the case, including post
hearing briefs submitted b each of the parties, the undersigned makes
the following
AWARD
The grievance is sustained in part and denied in part in accordance with the opinion expressed above .
P . M . Williams
Arbitrator
Dated at Oklahoma City, Oklahoma
this 18t}• day zf • --- , ^O?