USPS - NALC CONTRACTUAL GRIEVANCE PROCEEDINGSARBITRATION OPINION AND AWARD

In the M atter of ArbitrationBetween :

UNITED STATES POSTAL SERVICEMaumee, Ohio

-and-

NATIONAL ASSOCIATION OF LETTERCARRIERS, AFL-CIOBranch 100

FOR THE EMPLOYER

T . J . LangD . J . DuckinsRichard BigelowMarcelo AtanasioJohn. Was oakDaniel BoncaRichard VI andellLois Niley

FOR THE UNION

Jerry N . StreetGary RileyJohn BoellnerRichard EldridgeLorrainne ZonnerClair ErnestJack WolframJoe KolbowNeil ThompsonRonald Priaino

ISSUE :

C1N-4F-D-8807Gary R . RileyToledo, OH

Case No . CI_N-4F-D-8807

Decision Issued :November 8, 1982

APPEARANCES

AdvocateLabor Relations RepresentativePostmasterInspector'InspectorInspectorFormer PostmasterWitness

President, Branch 100GrievantStewardMaintenanceClerk - CarrierClerkLetter CarrierLetter CarrierLetter CarrierLetter Carrier

Removal for discarding undeliverable and deliverable mail .

Jonathan Dworkin, Arbitrator16828 Chagrin Boulevard

Shaker Heights, Ohio 44120

CIN-4F-D 8807

BACKGROUND OF DISPUTE

The Grievant was a classified Carrier Technician at the

Maumee, Ohio Post Office . He received a career appointment on

March 5, 1979 . On July 9, 1982, the Postmaster of the Toledo,

Ohio Office issued the Employee a letter of charges and proposed

removal . The principal allegation in support of the disciplinary

action was that, on several occasions, the Employee was observed

discarding mai

plinary notice

l i

st

nto a trash dumpster on his route .

ated in part :

The disci-

This is notice that it is proposed to remove youfrom the Postal Service no earlier than 30 daysfrom the date you receive this notice . The rea-sons for this proposed action are :

Charge No . 1 - Throwing Away the mail

You hold the position of Carrier Technician, Level6, at the Maumee Ohio Post Office . On May 11,1982, May 19, 1982 and May 27, 1982 you wereassigned to service Route #i5 Maumee, Ohio .

On May 11, 1982 you were observed by a postalcustomer discarding mail into a garbage dumpsterbetween 6637 and 6643 Garden Road Maumee, Ohio .Twelve pieces of third class mail were retrievedby the customer, from the dumpster, and turnedover to the Postal Service Inspection Service .All twelve pieces were for delivery on yourassigned Route #15 . The delivery status of themail was as follows :

1 piece - good as addressed4 pieces - moved forwarding filed1 piece - no such address4 pieces - vacant1 piece - moved, no forwarding filed1 piece - house occupied, delivery status

unknown .

CIN-%+F-D 8807

On May 19, 1982 you were assigned to service Route#15 . You were observed by two postal customersthrowing mail into the garbage dumpster between6637 and 6643 Garden Road Maumee . The mail wasretrieved from the dumpster and was for deliveryon Route #15 as follows :

8 pieces -1 piece -1 piece -

good as addressedmoved, forwarding filedhouse occupied, delivery statusunknown

The mail was turned over to the Postal InspectionService .

On May 27, 1982 you were assigned to service Route#15 Maumee . You were observed on your route, byPostal Inspectors J . Wascak and M . Atanasio . Youwere seen by Inspectors Wascak and Atanasioplacing a cardboard box into the garbage dumpsterbetween 6637 and 6643 Garden Rd . The cardboardbox was retrieved from the dumpster by InspectorsWascak_ and Antanasio . It contained seven niecesof third-class mail . The delivery status of themail is as follows :

5 pieces - good as addressed2 pieces - moved, forwarding request filed .

The foregoing is only an excerpt from the formal charges that

were lodged against Grievant . The Postal Service added to its

allegations by charging that the Employee's actions resulted in

additional misconduct . Charge number two was that Grievant

failed to deliver the mail to postal customers . Charge number

three was that Grievant failed to properly execute the duties and

obligations of his position by not returning the undelivered mail

to the Post Office for disposition by the Central Markup Unit in

Toledo, Ohio . Finally, the Postal Service's proposal for removal

stated that the Employee misdirected mail by depositing it in the

trash instead of delivering it to addressees .

CIN-4F-D 8807

The discharge became effective on August 11, 1982 . On

July 11, a Step One grievance was initiated in protest of the

discipline . The grievance remained unresolved and the matter was

appealed to Regional Arbitration . A hearing was convened in

Maumee, Ohio on September 3, 1982 . At the outset, the parties

stipulated that procedural prerequisites to arbitration had been

met and that the Arbitrator was authorized to issue a final and

binding award on the merits of the grievance . Arbitral juris-

diction is further defined and limited by the following language

of Article 15, Section 1(a)(6) of the Agreement :

All decisions of an arbitrator will be finaland binding . All decisions of arbitrators shallbe limited to the terms and provisions of thisAgreement, and in no event may the terms and pro-visions of this Agreement be altered, amended, ormodified by an arbitrator .

FACTS AND ISSUES

The Representative of the Employer concentrated upon

establishing that throwing away mail is a violation of a Letter

Carrier's responsibilities . A number of excerpts from the City

Delivery Carrier's Manual (M-41) were offered into evidence to

confirm that position . The portions of the Manual (which are

incorporated into the Agreement by operation of Article 19,)

delineate a procedure to be followed with respect to unde-

liverable mail . The simplest statement of an employee's duty in

that respect is set forth in Section 361 :

CIN-4F-D 8807

Accept all mail handed back by customers and pick-up undeliverable mail . If undeliverable, returnit to the delivery unit for proper handling . Ifthe mail was misdelivered on the route, see thatproper delivery is effected .

In addition to highlighting the contractual provisions , the Post-

al Service also submitted a number of prior arbitral decisions in

which it was ruled that misdirecting or discarding mail is a very

serious offense which justifies a very serious penalty .

In the Arbitrator ' s judgment , a substantial portion of

the E,nployer' s evidence and arguments on this question was super-

fluous . There are fundamental job obligations which every ra-

tional adult employee must he presumed to know, and contractual

provisions or special written rules would appear to be wholly

unnecessary to reinforce an employee ' s awareness of those re-

quirements . The primary mission of the United States Postal

Service is to deliver mail . Throwing mail in a trash container

is the antithesis of that mission . The Arbitrator finds it in-

conceivable that Letter Carriers would need to be specif ically

informed that they are not to throw mail away . It is useless to

burden this decision with an extended discussion that would lead

to the obvious conclusion that, under normal circumstances,

throwing mail in a trash dumpster is a violation of the most

rudimentary responsibility assumed by a Letter Carrier from the

moment that he or she accepts employment .

The Grievant did not deny that he threw mail away . In

fact , the Union stipulated that on May 27, 1982, the Employee

CIN-4F-D 8807

deposited a cardboard box containing mail and other items into a

dumpster on his route . According to Grievant, all of the mail

that he disposed of was undeliverable and valueless . The Union

challenged the Postal Service to prove that any of the deliver-

able items found in the dumpster had been placed there by Griev

ant . It also challenged the accuracy of information upon which

the charges were based .

In order to adequately treat the Union's contention that

the Postal Service's evidence did not comply with the requirement

that just cause for discharge be proved, it is appropriate to re-

cite the events that preceded the notice of removal . On May 19,

1982, a resident of a condominium complex on Gr•ievant's route

called the Maumee Post Office and reported that she had observed

a uniformed Letter Carrier throw something into a trash dumpster

on the property . Her husband looked through the dumpster and

retrieved ten pieces of undelivered mail . The items were turned

in to the Post Office . The customer also turned in twelve pieces

of mail that had been removed from the dumpster on or about May

11 under similar circumstances .

The information was reported to the Postal Inspection

Unit . An investigation was undertaken, and on May 27 a surveil-

lance was put into effect . It was then that the Postal Inspec-

tors observed Grievant placing a box in the dumpster . The box

was recovered . It contained five pieces of deliverable mail and

two items addressed to people who had moved and placed forwarding

addresses on file . The report of one of the Inspectors described

what happened next :

-5-

CIN-hF-D 8807

[Grievant] was confronted by Inspector Stephendine and myself at Maumee, Ohio on June 2, 1982 .He was advised of his Constitutional Rightsagainst self-incrimination and right to counselvia PS form 1057 (Exhibit A) . [Grievant] signedand dated the Warning portion but declined to signthe Waiver . In the absence of his union repre-sentative, who was not available, [Grievant]declined to be interviewed . It was, however,agreed that I would explain the case particularsto [Grievant] and show him the mail matter with noobligation on his part to address the issue . Thiswas done. -

Although it is unquestioned that deliverable mail was

found in the dumpster, Grievant asserted that it was not he who

put it there . His testimony in the arbitration hearing was that

all that he threw away on May 27 was undeliverable third class

mail of no obvious value . Grievant also affirmatively testified

that his conduct was consistent with instructions he had received

when he first went to work at the Maumee Post Office . In ether

words, although it would seem obvious to a layperson that throw-

ing mail away must be a violation of postal regulations, Grievant

testified that, to the contrary, his action was in keeping with

methods and procedures that he had been instructed to follow .

With respect to the events of May 11 and May 19, Griev-

ant offered no testimony . He neither confirmed nor denied the

Employer's allegations . However, the Union insisted that the

Postal Service had not met its responsibility of proving its

charges . It called attention to the fact that someone other than

Grievant, a postal customer for example, could just as easily

have disposed of his or her mail in the dumpster . Furthermore,

CIN-MF-D 8807

the resident of the condominium who testified on behalf of the

Postal Service was unable to identify Grievant as the person whom

she saw placing items in the dumpster on the days in question .

All that she could state with any degree of certainty was that

she observed a person in a Letter Carrier uniform throw something

into the condominium dumpster, and that shortly thereafter, mail

that appeared to be undelivered was recovered . The Union argued

that the identification was inadequate and was equally consistent

with the conclusion that an employee other than Grievant com-

mitted the acts .

The Union's challenge to the evidence raised the ques-

tion of the degree of proof that is necessary to support a dis-

charge . That issue has been addressed time and again by many

arbitrators . It has been reasoned by some that a discharge is

similar to a criminal penalty, and therefore, that an Employer

ought to be required to establish the elements of its case beyond

a reasonable doubt . Other arbitrators have borrowed different

concepts from the law, and have defined the burden as proof by a

preponderance of the evidence, or by the greater- weight of the

evidence, or by clear and convincing evidence .

The concepts o£ proof which have been adopted by courts

of law are vague and difficult to comprehend . Their application

depends upon the subjectivity of the trier of facts . In this

Arbitrator's opinion, the proper standard for resolving disputed

facts ini grievance arbitration is to assess the probabilities --

to accept as true those facts which are demonstrated to be more

CIN_4F1D 8807

probable than not . ,The probabilities in this controversy favor

the Postal Service . The Union's attack upon the evidence relies

upon remote and extremely speculative possibilities . According-

ly, it is determined that Grievant did throw away both deliver-

able and undeliverable mail on the dates in question .

The Union's second defense is that when Grievant dis-

posed o£ the mail, he was not acting in an unauthorized manner .

To the contrary, it is asserted that he was following instruc-

tions . The Employee testified that immediately after he was

hired in March, 1979, he received three days of training at the

Toledo Post Office . Presumably, that training included instruc-

tion on the proper way to handle undeliverable mail . When Griev-

ant was transferred to Maumee, the Postmaster at that office

allegedly told him to forget what he had learned at Toledo

because things were done differently and more efficiently at the

Maumee Post Office . One of the first things that Grievant

observed was that Letter Carriers customarily disposed of third

class, non-deliverable, valueless mail in large trash cans that

were provided for their use . According to Grievant, he followed

that example and was never warned, disciplined, or advised that he

was doing anything wrong .

Grievant's statement was confirmed by other witnesses .

The janitor at the Maumee Post office stated that, until re-

cently, he customarily emptied trash receptacles that contained

quantities of undelivered bulk mail . It is apparent that under

the former administration of the Maunee Post Office, undeliver-

CIN-f4F-D 8807

able third class mail was customarily discarded in the trash . It

was not forwarded to the Toledo Central Markup Unit . In fact,

the former Postmaster himself denied authorizing throwing mail

away, but admitted closing his eyes to fact that it was occur-

ring .

A new Postmaster was installed at Maumee in November,

1981 . One of his first acts was to announce that the practice of

thowing away undeliverable mail was prohibited and would have to

cease . He made that general announcement twice . But according

to Grievant's testimony, he was not present in the Post Office on

either occasion . He did not hear the announcement . That testi-

mony stood refuted .

The Union concluded its case by calling attentionn to the

fact that Grievant's employment record was unblemished, He had

never given the slightest indication o£ an attitude other than

dedication to his job . Grievant was not known to be the kind o£

Employee who would shortcut or overlook his obligations .

OPINION

Although the evidence does not support the Union's alle-

gation that Grievant was acting in accordance with specific in-

structions when he threw away mail, it does confirm that he was

acting pursuant to an established practice . Management of the

Maumee office clearly knew of the practice . The former Post-

master and supervisors whom he directed might not have specifi-

CIN-4F-D 8807

tally authorized the procedure, but they overlooked it in such

manner that their implicit consent reasonably could have been

presumed . Further evidence that the custom existed appears from

the fact that the new Postmaster found it necessary to put a stop

to it .

Unquestionably Management had the right to end a long

standing procedure that was incorrect and improper . However,

Management's rights always carry concomitant responsibilities .

One of the most fundamental of those responsibilities is to give

effective notice of new rules . In this case, the Maumee Post-

master recognized that obligation, and he attempted to fulfill it

by making two general announcements to the effect that carriers

would no longer be permitted to discard undeliverable bulk mail

in the trash . He went no further than to make the announcements .

He did not post a notice nor did he do anything to assure that

every carrier would receive the instruction .

According to undisputed and unchallenged evidence,

Grievant was not present on either of the occasions when the

general announcement was made . In the Arbitrator's view, the Em-

ployee could not legitimately be charged with violation of a rule

that changed an existing practice, when he did not receive effec-

tive notice of the rule . .

During the arbitration hearing, the Postal Service

recognized that a possible defect in its case was the fact that,

until the new Postmaster was installed at Maumee, Letter Carriers

were tacitly permitted to throw away undeliverable bulk mail in

CIN-4F-D 8807

office trash cans . Nevertheless, the Representative of the

Postal Service argued that Grievant's discharge was justified

because the Employee exceeded the bounds of the former custom .

He did not discard the mail in the office ; he threw it into a

dumpster on his route, and according to the Postal Service, that

clearly was never a part of the practice . The Arbitrator finds

that the distinction is not sufficient to sustain the penalty in

this case . So long as employees were given carte blanche to

place mail in trash containers, and were not given specific in-

structions to use certain containers to the exclusion of others,

Grievant's conduct could not be viewed as altogether unreason-

able . At least, terminating his employment on that account was

unjustly harsh . In effect, the disciplinary penalty was equiva-

lent to requiring the Employee to make judgments that were more

appropriately within the purview of Management's responsibili-

ties . When the Employer permitted the somewhat unusual practice

of throwing away mail, it became the responsibility of the Em-

ployer to communicate those limitations that were to be imposed

on the practice .

In sum, it is the opinion of the Arbitrator that, al-

though Grievant's discarding undeliverable bulk mail was impro-

per, it was consistent with a long standing practice at the

Maumee Post Office . When Management ordered the practice to

cease, it was obliged to give notice to all employees were to be

held responsible to follow the instructions . The evidence con-

firms that Grievant was not notified and that his lack of notice

CIN-4F-D 8807

was due to ineffective communication by the Employer . For that

reason, the termination of Grievant's employment for following

the former practice and disregarding instructions that he was not

aware of, was improper and lacked a foundation of just and suf-

ficient cause .

The foregoing conclusion does not resolve this dispute .

According to the evidence, Grievant also discarded deliverable

mail into the trash dumpster . Even if that action presumably

occurred by mistake rather than by intent, it constituted a most

serious violation of Grievant's employment duties . There is no

indication that the permissive practice of discarding undeliver-

able bulk mail included throwing away deliverable mail of the

same category . Moreover, not all employees threw mail away .

According to the evidence, some Letter Carriers customarily

followed proper procedures and placed their undeliverable mail

into established channels for processing . When Grievant and

other Letter Carriers chose to use trash containers for their

undeliverable bulk mail, they must be held to have assumed some

responsibility . At least, they were required to make certain

that no live mail was placed in the trash . No matter what the

custom might have been, it certainly did not permit Letter Car-

riers to put properly addressed, deliverable mail into waste

baskets or dumpsters . The Arbitrator finds that portion of

Grievant's acts which pertained to discarding deliverable mail

constituted extremely serious misconduct which warranted severe

discipline . Therefore, although the Arbitrator agrees with the

CIN-4F-D 8807

Union that Grievant should be reinstated , he does not agree that

the Employee is entitled to recover wages .

AWARD

The grievance is sustained in part . The Postal Service

is directed to reinstate Grievant to his employment . However,

the Union's request that Grievant be restored lost wages is

denied .

Decision Issued :

November 8, 1982