******************** **
,!~_g 0 6 716 A e
IN THE MATTER OF THE ARBITRATION
* REGULAR ARBITRATION
*
* Case No . S4N-3W-D-27918 i5m~~ ' '
Between
* Case No . S4N-3W-D-31100 6,yn
UNITED STATES POSTAL SERVICE
* Grievant :
* Laurel M. Orthwein
*
And
* Hearing : Oct . 7, 1986
NATIONAL ASSOCIATION OF LETTER CARRIERS
* Location :
* Sarasota, FL
* Arbitrator :
* * * * * * * * * * * * * * * * * * * * * * P . M . Williams
APPEARANCES : Angela N . Ferguson, Labor Relations Representative,
for the EMPLOYER .
Judson K . Vaughn, Regional Administrative Ass't .,
for the UNION .
DECISION AND AWARD
BACKGROUND :
The grievant's employment as a letter carrier at the post office,
Sarasota, Florida began on May 17, 1980 . At the time of her .suspension
and subsequent removal, which are the disciplinary matters which give
rise to the two grievances to be resolved here, she was assigned to the
Southgate Station .
At the end of her tour on March 6, 1986 she was given a note which
had been handwritten by CBO (initials), the station manager . The note
said as follows :
"Laurel "Effective Friday, March 7, 1986, you are placed on emergency suspension pending further notice .
"This is based on the investigative memorandum from Inspector T .W.C.
(initials) . You will be notified of further action .
"(signature)
"Manager, Southgate Station"
Under date of March 19, 1986, a letter was addressed to her in
care of the Employer, Sarasota . The subject of the letter was
"Emergency Placement In-Off-Duty-Status" . The content of the letter,
which was unsigned, was as follows :
"*** You are hereby notified that you were placed in an off-duty
(without pay) status effective March 7, 1986, and will continue until
his (sic) status (sic) until (sic) you are advised otherwise, pending
investigation.
"You have the right to file a grievance under the Grievance/Arbitration
procedure set forth in Article 15 of the National Agreement within
fourteen (14) days of your receipt of this notice .
"JB (initials)
"Supervisor"
-1-
A timely grievance was filed over her suspension . A Step 1 meeting was held . Notice of the Step 1 decision , which denied the grievance, was received on March 27 , 1986 . An appeal was made to Step 2 on
April 10th , and included therein the Union raised a question of the
timeliness of the suspension . No Step 2 meeting was held . The Union
appealed to Step 3 on April 24th . The Step 3 decision letter was dated
June 3rd , and in part stated as follows :
"*** The subject grievance is denied .
"Investigation revealed that the grievant was using address labels to
forward customer's mail to herself . Her contradictory attempts to
first deny , and later to ' explain' the matter were completely unacceptable . This action constitutes a violation of public trust and mistreatment of mail matter . This type offense warrants the most severe
I do not consider
corrective action , removal from the Postal Service .
the action to be untimely as there was considerable investigative work
undertaken in order to gather the evidence and information on which the
action was taken . . . ."
The Request for Arbitration was dated June 16th .
Under date of April 16 , 1986 the grievant was issued a Notice of
Removal (Notice ) . In part the Notice was as follows :
"*** You are hereby notified that you will be removed from the Postal
Service on May 23, 1986 .
"The reasons for this removal action are :
"Investigation reveals that on September 23, 1985 , at approximately
9 :00 a . m ., Supervisor MR (initials) was shown a Playboy Magazine with a
handwritten address label to [address deleted] ( there was no name) .
Ms . R indicated that she thought a carrier might be providing local
forwarding service to a customer and planned to pursue it later . At
approximately 10 :30 on that same date , she returned to her desk and
found a second item (bulk rate catalog) identically addressed . There
had been a previous address label on the item which had been removed .
Her investigation revealed the items had .been re-addressed to your residence .
"The Playboy Magazine was still in the sealed plastic wrapper which is
used for subscriber copies and the original label had been removed and
the yellow , handwritten , self-adhesive label had been applied in its
place . The bulk rate piece was a product catalog from [ name and address deleted ] . It also had a handwritten , yellow label applied where
the old label had been removed . Both pieces were discovered in the
regular rework and misthrows by Distribution Clerk EW , on September 23,
1985 .
"You were interviewed at Southgate Station on September 25, 1985, by
Inspectors JSH and TWC . Shop Steward GH was present at your request .
You acknowledged that you resided at (address deleted] . You were shown
the two pieces of mail and stated that you had never seen them before
and did not apply the handwritten labels . You further stated that you
had never handwritten any forwarding labels and had never had access to
any labels like the ones on the two articles , and that the handwriting
on the two labels was not your writing ."
"You were then advised that the writing had been compared to your known
handwriting in your Personnel folder and there were definite similarities to the writing on the labels . You again , denied ever seeing the
labels before and thought it was ridiculous that you would do such a
thing .
"You were then asked if you would provide handwriting comparisons . You
agreed and provided the requested samples . Throughout the interview,
you denied ever seeing or having any knowledge of the labels or the
mail and thought the entire situation was very amusing .
"On September 26, 1985 , it was reported to Inspector C by Station
Manager CO , that Union Steward H had been told by you that morning,
that you and a friend used to use the little yellow labels to send each
other mail . You stated that your friend wanted you to read an article
in Playboy magazine , so he placed a label on it and placed it in your
mother's mail box , because you frequently go by your mother ' s house and
thought you would get - it out of the mail box . You stated the carrier
evidently picked it up and it got into the mailstream and the reworks
at the station. On September 30, 1985, Supervisor R was advised that
the handwriting analysis would be held up and you would be interviewed
again .
" On October 8, 1985 , you were again interviewed at Southgate Station .
Mr . H and Mr. 0 were present . You stated that you had written the
labels about 1 1/2 to 2 years ago and sent a sheet of the labels to a
friend who lived out of town , so he would write to you , but had forgotten about this when you were originally interviewed . Since the
incident you stated that you had contacted your friend , and he had
confirmed that he had put the label on the magazine because there was
an article in it that he wanted you to read . The other piece supposedly contained some items that your son's scout troup could use for
projects . You did not explain why the magazine was still in the sealed
plastic wrapper . You believed your friend had placed the two articles
in your mother ' s mailbox on Tuesday , September 24, your day off, and
when you looked in your mother ' s mailbox you did not see them because
you were looking for a parcel and not specifically a magazine . You
stated you would provide a typed, sworn statement later, which you
never did .
"On October 10, 1985 , Mr . 0 provided a note from you, which had been
left in Mr . H's drawer . The note read : ' I want something in writing
from Management that my witness will not be prosecuted for anything
regarding my case . Laurel ' . A letter to this effect was sent to you
that same date .
On November 15, 1985 , Inspector H received a letter from you, postmarked November 14, 1985 . The typed letter was dated October 23, 1985, and
provided the name of your friend , SS [address deleted] , and his work
phone number .
"Attempts to contact SS at his work number , a brokerage firm in
Sarasota , disclosed that he had left the firm about six months earlier
and the manager stated that he had heard that Mr . S was deceased . Attempts to verify his address through the letter carrier were unsuccessful, and there was no home telephone listed . On February 10, 1986, a
personal visit to the home address was made and found no one at home ."
"A card was left and on February 11, 1986, an individaul named RS called and stated that SS had passed away last year, he thought it was the
third week in October . The cause of death was not disclosed . Although
your letter giving Mr . S as a witness was dated October 23, 1985, it
was not postmarked until November 14, 1985 . Mr . PS shared a house with
SS for about five months prior to his death, but stated that he had
never heard of [Grievant] .
"You are charged with mistreatment of mail matter .
"You have the right to file a grievance . . . .
",JIB
Station Superintendent"
The grievant received the Notice on April 22, 1986 . Its content
is almost identical to the content of-the Postal Inspector's Investigative Memorandum, which was dated February 17, 1986 and received at the
Southgate Station a few days later, having been addressed to the postmaster, Sarasota .
The Notice was grieved . It was denied at Step 1 on May 3rd . The
parties agree that the later appeals were timely and properly processed and that the matter is before him for a decision .
All interested parties appeared at the hearing, including the
grievant, who testified on her own behalf . Each party was given an
opportunity to present such evidence, through exhibits and the testimony of witnesses as was deem appropriate under the circumstances . All
witnesses were sworn and were cross-examined by the opposing party . At
the conclusion of the hearing the undersigned gave the grievant an opportunity to privately consult with her representative for the purpose
of gaining his advice on whether she should volunteer further comments,
which would be subject to cross-examination at the option of the Employer's representative . Upon returning to the hearing room she stated
that she had 6 years service and in that time had received no discipline for infractions of the Employer's rules, or for poor attendance .
She said she had never been challenged like this before, and that she
was known among her co-workers as a truthful person . She asked that
the grievance be sustained .
Each party submitted a post-hearing brief in accordance with the
agreement made at the conclusion of the hearing .
POSITION OF THE PARTIES :
United States Postal Service (Employer) :
The Employer contended its act of suspending the grievant and
thereafter removing her was for just cause and in accordance with the
terms and intent of the National Agreement . It claimed that mistreatment of mail matter was a very serious offense and warranted removal
action whenever an employee was guilty of such action . It said that
the fact that no criminal charges were instituted against her did not
alter the fact that what she did was highly improper and demanded the
most severe corrective action available to it, i .e., removal . It asked
that her grievance be denied .
National Association of Letter Carriers ( Union) :
The Union ' s contentions went to procedural as well as substantive
issues . It first claimed that the Employer failed to properly investigate the matter before imposing discipline , thereby depriving the grievant procedural due process in the suspension action and also in the
removal action. It next said that in continuing its investigation from
September 25, 1985 to February 17, 1986, and thereafter waiting until
March 6th to put her on emergency suspension and until April 16th to
remove her , the entire disciplinary action was flawed because it was
untimely , therefore both actions should be overturned . It further said
the Employer had failed to prove at the hearing she had engaged in the
misconduct with which she was charged , therefore neither her suspension
or her removal was for just cause . It asked that her grievance be sustained and that she be reinstated and made whole for all earnings lost,
and record of the discipline expunged from her personnel files .
ISSUE : Was ( 1) the emergency suspension , and (2 ) the removal of the
grievant for just cause and in accordance with the terms of the
National Agreement (NA) and applicable rules and regulations, and if
either ( 1) or (2), or both, are not for just cause , what is the proper
remedy?
OPINION :
Postal Inspector T[ was a witness at the hearing . He identified
his Investigative Memorandum ( IM), and corroborated its content . It
was his testimony that after the grievant identified "SS" as being the
person to whom she had sent the yellow labels listing her address, and
which she alleged SS placed on the Playboy Magazine and the catalog
which are mentioned in the IM, he tried to contact SS by telephone at
the office of SS's employer . He was told SS had not been an employee
for 6 months and that SS might be deceased . TWC neglected to list the
date of his call to the employer , he said however that after receiving
SS's name from the grievant on November 15, 1985 , he did not return to
Sarasota until February 10, 1986 , when he went to SS ' s residence, finding no one present . He left his card . The next day he received a call
from RS , who identified himself as SS's roommate . RS advised him that
SS's death had occurred October 25 , 1985, and that it was likely a
suicide .
T W 's reasons for not returning to Sarasota before February 10th
were said to be because of Christmas' rush priorities , plus his having
been involved in a big investigative matter afterward, and presumably
continuing until February 9th .
At the outset the undersigned wishes to note that but for what he
is persuaded is good reason for his doing otherwise , his inclination
would be to deny both grievances because he believes the grievant's
description of what happened in this instance is purely and simply, a
cockamamy story , conceived in a desperate attempt to cover-up the real
situation . That is to say he believes the person , SS, was neither a
friend with whom she sometimes corresponded, nor is it likely - and it
is certainly not believable -- that he was the original addressee of
the 2 articles , or that he had access to them so he could put them in
her mother ' s mailbox . This latter fact could have been rather easily
nailed down by the Employer , or proved by the Union , had either saw fit
to interview the carrier ( s) on the mother ' s route on the days when the
2 articles would necessarily have been picked - up . The carrier ( s) were
neither interviewed , nor called as witnesses at the hearing .
-5-
The Employer puts forth the notion that the emergency suspension,
as well as the removal action were appropriate disciplines , and were
its only alternative because the grievant was no longer a trustworthy
or reliable employee . Rather, she had committed a cardinal sin, i .e.,
violating the sanctity of the mail when she directed mail to her home
that was intended for someone else . It inplied her usefulness as an
employee was at an end . Its action in regard to her after it learned
of the incident and before March 6 , 1986, however , bespeaks that at
least initially , local management did not take such a hard line toward
her impropriety . Rather , from what it did - or, it might be more
appropriate to say - what it did not do , the inference may appropriately be drawn that at the outset the matter was viewed as de minimus
in nature , and only when a change occurred in local management , or possibly because of what came down from higher officials, did a review
occur , after which the two disciplinary actions were instituted . This
will be discussed in more detail below .
First however , it might be helpful to make a quick chronological
review of what happened and when , and what was done , discipline-wise,
and when .
The 2 articles were discovered and brought to the attention of the
then supervisor , MR, on monday , September 23, 1985 . When the second of
the articles was given her, MR contacted the station manager, CBO . He
called the Postal Inspection Service . TWC and another Inspector came
to the station and interviewed the grievant on the 25th . CBO and MR
were not present during the interview , however, she requested a steward, and one was called . On the 25th she denied knowledge of the yellow labels and also of the origin of the articles . On the 26th however , she recanted , saying that she was responsible for the labels .
Based on what the undersigned has cone to learn is
standard procedure in the Postal Inspection Service , it
CBO was briefed by at least one of the two Inspectors on
what transpired in the interview . And if that be true ,
the grievant ' s contentions at that point in time .
more or less
would seem that
the 25th as to
CBO knew about
On October 8, 1985 , 'IWC returned to Sarasota . He had another
interview with the grievant . CBO was present at this interview, as was
the steward . She gave her version of what SS had done , and when . She
did not however name him . On the 10th she communicated to CBO the fact
that she wanted assurance that her "friend" would not be prosecuted .
When CBO communicated this to TW the latter drafted a letter to that
effect and sent it to her . On November 14th she mailed a letter to TWO
which had been dated October 23rd . In the letter was SS's name, address and business telephone number . TWO received it on the 15th .
From the time the 2 articles were discovered until March 7, 1986
she worked each of her scheduled days on her regular T-6 route string .
The IM was dated February 17, 1986 . CBO became aware of it a few
days later . In November , 1985, JB , replaced MR as the grievant's
immediate supervisor when MR was assigned to another station .
On March 6th , CBO prepared a handwritten rote which notified her
that effective the next day she was placed on "emergency suspension" .
The note was also signed by JB .
The undersigned does not understand the rationale for the letter
dated March 19th unless it was intended as a possible reinforcement to
the note of the 6th . However, in his opinion neither of the communications comport to the standards for suspensions set by Article 16, Sections 4, or 5 , or 7 . More will be said about this below.
The Notice of Removal was issued April 16th, a tuesday . However,
she signed for it the following mtnday , the 22nd . The reason behind
the delay of 6 days was not explained .
Returning to the discussion of the merits of the matter .
When the 2 Postal Inspectors began interviewing the grievant on
September 25, 1985 , neither explained her Miranda rights to her . TWC
said the reason the rights were not explained was because the incident
was not viewed as being a criminal matter . Whether this was later disclosed to CBO, who was not present at the time, is not known . However,
as has been noted , in the undersigned ' s experience CBO probably was
told of the Inspectors' conclusions , and he believes it was that knowledge which put the matter of possible discipline on hold for 5 1/2
months , from September 25, 1985 to March 6, 1986 .
Under any circumstances the delay would seem excessive unless a
conplex investigation ensued , which did not in this case . However, the
the undersigned believes the delay is indicative of two very significant factors . The first is the low priority the matter was given by
the Postal Inspection Service . The second , and by far the more important of the two , is not that the delay happened , rather it is the fact
that the grievant was allowed to perform her regular duties during its
course . Such non-action on the Employer ' s part is incredulous unless
it is to be said that those responsible for allowinq her to continue as
a carrier were of the opinion that her misconduct was essentially deminimus , and consisted only of her improperly channeling undeliverable
and soon to be disposed of - because it had no obvious value - mail
matter to her home .
He hastens to add he does not minimize the impact that either
should .or normally does occur when no obvious value mail is diverted to
an emplyee ' s personal use . Rather he mentions his conclusion only by
way of noting what he believes is the probable reason that she was not
suspended on or about October 8 , 1985, which is the date she recanted
from what she had said in her first interview , and went on to talk
about her relationship with a person she later identified as being SS .
It also seems to him that after the 8th, other than learning SS's identity and the fact that he was deceased , the IM added nothing significant to the Employer ' s understanding of the incident .
It seems correct to say therefore , that from October 8, 1985 until
March 6 , 1986 local management had knowledge of essentially all of the
important facts that were likely to guide them toward making a decision
about whether she should or should not be retained as an employee, yet
it nevertheless allowed her to continue working at her regular carrier
duties . Moreover , after February 18th or 19th, until March 6th, 1986
they had the means for determining the names of everyone who might have
been able to shed light on what had happened , but the carrier ( s) on her
mother ' s route were not interviewed , and it also continued to let her
perform her regular duties in that interim . And, despite having a complete understanding of the facts on the latter date , the removal notice
was not issued for 6 weeks , with her actual termination date advanced
for yet another 5 weeks, or until May 23rd .
-7-
The undersigned has been involved in a great many grievances involving removal actions of employees of this Employer who were represented by this Union , and by other unions as well . It has been his experience that whenever the Employer has reasonable cause to believe an
employee might be improperly handling mail matter or funds, its reaction is swift and decisive . The employee is either immediately put
on administrative leave or placed on a non -duty , non-pay status ; or he
or she is assigned to duties which do not include the handling of mail,
or funds . It has not been his experience that after learning of possible misconduct on the part of an employee in the handling . of mail, or
funds , that the Employer allows the employee to continue as before pending receipt of an IM from the Postal Inspection Service : which is reason furnished here for the suspension not being issued before March 6 .
In this case , for reasons which will be briefly explained below,
the undersigned does not understand his duty as being to decide whether
the grievant ' s misdirection of the Playboy Magazine and the catalog,
each of which he finds happened, combine to serve as just cause for her
removal. Rather he believes he is called upon to decide whether having
done so , is it to be said the Employer ' s long term non-action in either
interrupting or altering her regular assignment should impact upon his
otherwise unfettered right to determine that she is not a trustworthy
or reliable person , and therefore subject to removal under the just
cause provision of the NA?
To put the query differently . When over a long period of time
after the occurrence of an incident of misconduct an Employer fails to
give any kind of signal to the employee , or others that it deems the
employee untrustworthy and unreliable , is it proper for an arbitrator
to overturn what is the considered judgment of the Employer as to the
employee ' s character as it relates to the incident , and thereby decide
a grievance against the employee , or is the arbitrator constrained to
follow what the Employer has displayed is its judgment of the character
of the employee after the incident?
The undersigned is relatively certain that unanimity over what he
is about to say is unlikely among arbitrators , although perhaps it
should be . However, he nonetheless is persuaded that if it is improper
for an arbitrator to substitute his judgment for that of an Employer
when the record supports its disciplinary action , it is likewise improper for the arbitrator to ignore how it has re-acted to the employee's alleged misconduct . And if its current allegation is incongruous
to its earlier action - or lack of action , as the case may be - he is
also persuaded that the arbitrator should not make an incursion into
the record to seek support toward offsetting what has occurred because
to do so tends to put him in the position of being an advocate for the
Employer , which . is .clearly not expected of him , and is certainly not
his function . But more importantly , or so it seems to him, if such an
incursion is made a great disservice would be done the grieving employee, who, as the initiator of the action , has a right not to be surprized by action of an unexpected adversary, who would unilaterally be
undertaking a much unexpected approach in the arbitration process .
Putting what is last said yet another way . When the Employer
knows the essential facts surrounding an incident , but nevertheless
maintains the employee ' s status quo and fails to initiate disciplinary
action for such an extended period as it did here (over 5 months), the
greater weight of the evidence for deciding the matter should not be
based on what the eloyee did or did not do, rather it should be based
on how the Enployer continued to re-act after it became aware of what
had happened regarding the eloyee . And if its current allegations
are inconsistent with its past action, the latter should be deemed more
demonstrative of what are its real beliefs insofar as the probative
proof is concerned .
When what is last said is applied to the current situation it
seems apparent that because local officials permitted her to continue
working at her regular letter carrier duties for more than 5 months
after it had a full understanding of what had happened, it mast be said
that its proof falls short of showing that it perceived her as being an
untrustworthy and unreliable employee . The undersigned is therefore of
the opinion that he constrained to find that the removal action was not
for just cause. The question then becomes : Was the emergency
suspension for just cause, and if not, what is the proper remedy?
Earlier it was noted that in his view neither the note of March
6th, nor the letter of March 19th, 1986 met the requirements of Article
16, Sections 4, or 5, or 7 of the NA (1st 11, page 7) . Those Sections
provide as follows :
"Section 4 . Suspensions of 14 Days of Less
"In the case of discipline involving suspensions of 14 days or less,
the employee against whom disciplinary action is sought to be initiated
shall be served with a written notice of the charges against the employee and shall be further informed that he/she will be suspended after ten (10) calendar days during which ten-day period the enployee
shall remain on the job or on the clock (in pay status) at the option
of the Enployer.
"Section 5 . Suspensions of More Than 14 Days or Discharge
"In the case of suspensions of more than fourteen ( 14) days, or of
discharge, any employee shall, unless otherwise provided herein, be
entitled to an advance written notice of the charges against him/her
and shall remain either on the job or on the clock at the option of the
Employer for a period of thirty (30) days. Thereafter, the eloyee
shall remain on the rolls (non-pay status) until disposition of the
case has been had either by settlement with the Union or through exhaustion of the grievance-arbitration procedure . A preference eligible
who choses to appeal a suspension of more than fourteen (14) days or
his discharge to the Merit Systems Protection Board (MSPB ) rather than
through the grievance-arbitration procedure shall remain on the rolls
(non-pay status) until disposition of the case has been had either by
settlement or through exhaustion of his MSPB appeal . When there is
reasonable cause to believe an enployee is guilty of a crime for which
a sentence of inprisonment can be imposed, the Employer is not required
to give the employee the full thirty (30) day advance written notice in
a discharge action, but shall give such lesser number of days advance
written notice as under the circumstances is reasonable and can be justified . The employee is immediately removed from a pay status at the
end of the notice period ."
-9-
"Section 7 .
Emergency Procedure
"An employee may be immediately placed on an off-duty status (without
pay) by the Employer, but remain on the rolls where the allegation involves intoxication (use of drugs or alcohol), pilferage, or failure to
observe safety rules and regulations, or in cases where retaining the
employee on duty my result in damage to U .S . Postal Service property,
loss of mail or funds, or where the employee may be injurious to self
or others . The employee shall remain on the rolls (non-pay status)
until disposition has been had . If it is proposed to suspend such an
employee for more than thirty (30) days or discharge the employee, the
emergency action taken under this Section may be made the subject of a
separate grievance ."
When one reads the handwritten note of CBO which placed her on
"emergency suspension" effective March 7, 1986, and also the Letter of
March 19th ( see page 1 hereof), it is apparent that no allegation of
specific wrongdoing is contained in either document . The Employer
therefore erred because it seems clear that while the drafters of the
language of the NA obviously intended that the Employer was to be
clothed with authority to suspend an employee, it was also their intent
that the employee was to be advised in writing concerning the reasons
for the suspension in order that he or she would be able to adequately
defend against the charge(s) . He also believes that their intent is so
obviously expressed in the above quoted Sections that further discussion of the matter is unnecessary . And he further believes the most
practical means for correcting such an obvious breach of the NA on the
Employer's part is to direct that the grievant be compensated for the
wages she would have earned had she been given 30 days advanced notice
of her removal, and he will so direct .
Having resolved that the Employer erred in suspending her without
also advising her of the reasons for the suspension and thereby is liable to her for the wages she would earned had a proper 30 day notice
been accorded her, and having also resolved that its action toward her
after the incident and before the suspension belies its subsegent allegations against her - thereby precluding a full review of the substantiveness of her misconduct - the undersigned will now turn to reviewing the record made at the hearing for purposes of fashioning what he
believes is the proper remedy insofar as the removal action is concerned .
In the last paragraph on page 5 it is noted "that but for what he
is persuaded is good reason for doing otherwise, his inclination would
be to deny both grievances because he believes the grievant's description of what happened in this instance is a cockamamy story, conceived
in a desperate attempt to cover-up the real situation ." The great majority of the "good reason" he spoke of earlier has been addressed and
will not be repeated, now . However, he believes it very important to
note that despite what he is about to say about the grievant, he is
nevertheless convinced that local officials did not view what she did
as being a grounds for her discharge . And he further believes that
despite her perception that to be candid at the hearing would hurt her
chances for the grievances to be sustained, it does not absolutely
follow that her capability to return to her former position and be a
good employee was destroyed by her not telling the truth about what
happened .
-10-
If he did not believe that she can return to her duties and be the
good enployee that she had been for the five years preceding her removal he can assure the reader the results in this case would be decidedly different because he , and most other arbitrators have an aversion
against directing that an employee be restored to the work force when
the enployee has not been truthful at the arbitration hearing , which he
finds to be the situation here . But he is quick to add, when it is
known , as it is here , that the Employer ' s basis for the removal action
is essentially unsupportable , it necessarily follows that there mist be
a balancing of the existing equities in order to arrive at a result
that is fair to both parties .
Here the Employer erred in the two regards which have already been
discussed . The grievant also erred in not being candid to the Postal
Inspectors and also to the undersigned . He therefore is of the opinion, and so finds , that the proper remedy is for him to direct that she
be reinstated to her former position without loss of seniority, and
with pay and fringe benefits for 30 days after March 7, 1986 , but without pay or fringe benefits thereafter until her return to work, which
shall be no later than 7 days after the date of this award , if that be
her desire .
In conclusion it is to be noted the Union claimed that both disciplines should be overturned because the Employer ' s action was flawed by
its being untimely taken . The argument is not wholly without merit,
however in taking such an affirmative defense toward the disciplines
the Union took on the obligation for fully developing at least the fact
that its case was harmed as a result of either it, or the grievant,
being subjected to faulty recollections about what had happened a long
time before . The Union made the claim that that was a probability,
however it offerred no proof that such either was a fact , or that it
likely could be one . The request for sustaining the 2 grievances on
the basis of untimeliness will therefore be dismissed .
The Union also contended that the disciplines should be overturned
because due process was denied her because a full and complete investigation was not made of the incident . The undersigned is unable to
agree with the Union ' s characterization of the nature of the investigation . He finds it to have been most thorough , albeit more than a
little delayed . He will dismiss the request that the grievances be
sustained because she was denied a full and complete investigation .
Lastly the Union contended the Employer did not prove that she was
guilty of misconduct . He is unable to agree . The misconduct was proved by the probative evidence . The reason the grievances are not denied
is not because proof of wrongdoing was lacking , rather it is because
the misconduct was essentially condoned by the Employer for a long
period of time.
On the basis of the entire record in this case , which includes a
timely filed post hearing brief from each party , the undersigned makes
the following
Just cause did not exist for the grievant ' s emergency suspension
and removal , consequently the grievances are sustained in part and
denied in part in accordance with the opinion expressed above . The
grievant shall be reinstated to her former letter carrier position at
the Southgate Station , Sarasota without loss of seniority within 7 days
of the date of this award . She shall be compensated and receive fringe
benefits for the 30 calendar day period after March 7, 1986 . She not
be made whole for the earnings or fringe benefits which were lost after
April 6 , 1986 until the date of her return to work . Her request that
the emergency suspension notice be expunged from her personnel files is
sustained . Her request to have the removal notice expunged from her
personnel files is denied .
All sums due shall be paid not later than the 3rd pay period following the date of this award .
Dated at Oklahoma City , Oklahoma
this 3rd day of December, 1986 .