c- 1g( 1a

REGULAR ARBITRATION PANEL

In the Matter of the Arbitration ) GRIEVANT : Charles L. Nichols

between ) POST OFFICE : Altus OK(

UNITED STATES POSTAL SERVICE ) USPS CASE NO: G94N-4G-D 98002174(

and ) NALC CASE NO : 010870

NATIONAL ASSOCIATION OF LETTER(

CARRIERS, AFL-CIO

BEFORE : Michael E . McGown, Arbitrator

APPEARANCES :

For the US. Postal Service :

For the Union :

Place of Hearing :

Date of Hearing:

Record Closed:

O.D. Curry

Andrew T. Petersen

U.S. Post Office

June 24, 1998

July 11, 1998

AWARD:

For the reasons given, the grievance is sustained and the Employer directed to rescind the Notice of Pro-posed Removal, reinstate the Grievant, and make him whole .

Date ofAward: August 11, 1998

3E3 11998

REC

CONTRACT ADMINISTRATION UNITN.A.LC. WASHINGTON, D .C .

Michael E. McGown, Arbitrator Page 2 Case No . G94N-0G-D 98002174

ISSUE

Was the removal of the Grievant for just cause? If not, what is the appropriate remedy?

SUMMARY STATEMENT OF THE CASE

The United States Postal Service (hereinafter referred to as "Employer ") and the National Association ofLetter Carriers, AFL-CIO (hereinafter referred to as "Union") failed to resolve this grievance and, pursuant to theircontractual procedures, the Arbitrator was appointed to hear and decide the matter . At the Hearing, the partiesstipulated that the grievance was properly before the Arbitrator , that all steps of the arbitration procedure had beenfollowed, and that the Arbitrator had the authority to render the decision. After the Hearing, the parties agreed topresent oral closing arguments in support of their positions . Further , the parties agreed to submit prior arbitrationcases to the Arbitrator by placing the submissions in the mails no later than July 8 , 1998. The submissions filed bythe Employer were received by the Arbitrator on July 9 , 1998. The submissions filed by the Union were received bythe Arbitrator on July 11, 1998 .

Charlie L. Nichols (hereinafter sometimes referred to as "Grievant") is a City Letter Carrier at the Post Of-fice in Altus, Oklahoma . On July 14, 1997, Customer Service Supervisor Steven E . Gifford issued to the Grievant aNotice of Proposed Removal that states in relevant part as follows (Joint Exhibit No . 2) :

This is advance written notice that it is proposed to remove you from the Postal Service no soonerthan 30 calendar days from the date of your receipt of this letter. This action is based on the fol-lowing reasons :

Charge: You are charged with Unsatisfactory Performance

You have been repeatedly warned that you should not use unauthorized overtime. Yet, you havecontinually used overtime without proper authorization.

Specification 1 : Repeated Unauthorized Use of Overtime

Specifically, on June 14, 1997, you took 8.71 hours to deliver your route . This amounted to youreceiving . 71 hundredths/42 minutes of unauthorized overtime. You did not request nor informmanagement that it would require overtime to complete your route .

On June 19, 1997, while I was performing street observations, I saw that you hadfallen behind onyour deliveries. 1 provided you with . 60 hundredths/30 minutes auxiliary assistance . You still took.29 hundredths/minutes unauthorized overtime . You did not request nor inform management that itwould require overtime to complete your route .

On June 24, 1997, you took 8.72 hours to deliver your route. This amounted to you receiving . 72hundredths/43 minutes of unauthorized overtime. You did not request nor inform management thatit would require overtime to complete your route .

On July 5, 1997, you requested 1.25 hours of auxiliary assistance. You were provided 1 .58 hoursof auxiliary assistance. Nevertheless, you still used . 64 hundredths/38 minutes unauthorized over-time. You did not inform management that it would require overtime to complete your route afterthe auxiliary assistance was granted .

Michael E. McGown, Arbitrator Page 3 Case No . G94N-4G-D 98002174

Specification 2: Failure to provide an accurate estimate for delivery of your assigned route

On each ofthe above-cited dates in Specification 1, you did not provide management with an ac-curate estimatefor delivery of mail on your assigned route.

On June 17, 1997, you informed me that you could not deliver your route in 8 hours. When I askedyou to submit a 3996, Request For Auxiliary Assistance, you refused. Therefore, when you left forthe street, I walked the route with you. I counted your pace at between 90 to 110 per minute . Youhave previously demonstrated during an efficiency check that your pace was 116 . Even thoughyour pace was slower, on this date, than your demonstrated pace of 116, you finished the route 45minutes early. It is apparent that your estimate that you could not finish the route in 8 hours wasan attempt to expand your street time.

Your action above demonstrated actions are counterproductive to the mission of the Postal Serv-ice, which is timely delivery of mail. Your actions can no longer be tolerated I have repeatedlyattempted to correct your deficient work performance but you have made no attempt to correctyour behavior.

In addition, the following elements, of your past record will be considered in arriving at a deci-sion ifthe charge is sustained:

1. You were issued a 14 day suspension effective May 24, 1997, for failure to perform yourduties conscientiously and effectively.

2. You were issued a 7-day suspension effective February 15, 1997 for failure to performyour duties conscientiously and effectively, specifically, for failing to accurately estimate auxiliaryassistance.

3. You were issued a Letter of Warning dated November 26, 1996, for unsatisfactory per-formance, specifically, for improperly estimating needed auxiliary assistance .

. .s

On July 25, 1997, the Grievant filed a grievance protesting the Notice of Proposed Removal, and on July26, 1997, the grievance was denied by Supervisor Gifford. Pursuant to Article 15 of the National Agreement, thegrievance was appealed on August 7, 1997, to Step 2 of the grievance procedure alleging a violation of, but not lim-ited to, Articles 15, 16, 17, 19, 34, and 41 of the National Agreement and stating in relevant part as follows (JointExhibit No . 2) :

FACTS: WHAT HAPPENED-On July 14, 1997 Mr . Charles Nichols was issued a Letter of ProposedRemoval to become effective at the end of 30 days He was charged with specifically, unsatisfac-tory performance, #1 repeated use of overtime #2 failure to provide an accurate estimate for de-livery ofyour assigned route .

UNION CONTENTIONS: REASONS FOR GRIEVANCE-Mr. Nichols followed instructions and regu-lations on June 14, 1997, June 19, 1997, June 24,1997, and July 5, 1997. On June 14, 1997, Mr.Gifford claims that Mr. Nichols did not request nor inform management that he would requireovertime to complete his route . This is not true, Mr. Nichols did in fact fill out a 3996 (request forauxiliary assistance or overtime) . His request was denied by Supervisor Bullington based solelyon linear measurement, which she personally wrote on the 3996. Ms. Bullington further stated toMr. Nichols that he would carry his entire route, and that he would need to do it in 8 hours .

Michael E. McGown, Arbitrator Page 4 Case No. G94N-4G-D 98002174

At this time Mr. Nichols informed Ms . Bullington that he would carry the entire route, but that hecould not do it in 8 hours. Ms. Bullington walked away withoutfurther instructions. Mr. Nicholsdid as he was instructed and carried his entire route, which ultimately required, 71 hrs . of over-time which was . 04 hrs less than what he had estimated Mr. Nicholsfollowed his instructions anddid nothing wrong on June 14,1997.

On June 19, Mr. Gifford states that Mr. Nichols did not request nor inform management that itwould require overtime to complete his route . This is not true. On June 19, 1997, Mr. Gifford, ac-cording to his own statement, knew that Mr. Nichols was running late. Mr. G ford asked Mr.Nichols how much behind he was and Mr. Nichols told him that he would need at least 1 hour ofassistance or overtime to finish his route . Mr. Gford told Mr. Nichols to give a PTF carrier thelast 3 streets and for him to do the rest. The last 3 streets take approximately . 75 hrs. This left Mr.Nichols with approximately .25 hrs. of overtime which equals 1 hour . Counting the time it tookMr. Nichols to separate the last 3 streets for the PTF he used . 29 hrs. of overtime. Since Mr. Gif-ford instructed Mr. Nichols to complete the rest of the route, and he was informed that it wouldtake 1 hour Mr. Gifford authorized the .29 hrs. of overtime. On June 19,1997 Mr. Nichols didnothing wrong. He followed instructions by Mr. Gifford

On June 24, 1997, Mr. Gifford states that Mr. Nichols did not request nor inform managementthat it would require overtime to complete his route. This is not true. On June 24, 1997, Mr. Gif-ford personally came out on Mr. Nichols route and asked him if he was going to be able to finishhis route on time. Mr. Nichols informed Mr. G fford at this time that he was about 30 minutes be-hind and would need about 30 minutes of help or overtime . Mr. Gifford said OK or all right,rolled up his window in his car, and drove away. By Mr. Gifford's statement, Mr. Nichols understood that he was to complete his route on overtime unless Mr. Gifford sent someone out to helphim.

No one showed up to help him complete his route so Mr . Nichols completed his route as quickly ashe could and returned to the office. Since Mr. Nichols notified Mr. Gifford personally, that heneeded help or overtime and Mr. Gifford indicated his approval by stating OK, Mr. Nichols didnothing wrong on June 24,1997. Since Mr. Nichols had already informed Mr. Gifford that heneeded help, he did not think that Mr. Gifford would want him to use 15 to 20 minutes to go andmake a phone call to tell him the same he had told him out on the route, then have to use thatmuch more overtime.

On July 5,1997 Mr. Gford states that Mr. Nichols did not request nor inform management that hewould require overtime to complete his route after he had been given 1 .25 hrs. of auxiliary assis-tance. This is not true. Mr. Nichols had 24 feet of mail to deliver on this day, which was the dayafter the 4th of July holiday. He was not aware that he had so much DPS mail until he went toload his mail in his postal vehicle, since management does not want carriers checking their DPSmail because they say that the carriers waste time by doing so . Also Mr. Nichols had more parcelsthan all but I carrier in the office. Once Mr. Nichols realized exactly how much mail he had hewent back inside the office and informed Supervisor Bullington that the 1 .25 hours he had re-quested was not enough. Ms. Bullington checked to see how much mail Mr . Nichols had and thentold him to go ahead deliver all but the 1 .25 hours of mail that someone else was going to deliverand just do the best he could, which he did Since Mr. Nichols did inform Supervisor Bullingtonthat 1 .25 hours would not be enough to allow him to complete his route in 8 hours , and she hadtold him to go ahead and deliver the rest of his route and do the best that he could, he did not feelthat she would want him to use 15 to 20 minutes to go to a phone and call her to tell her the samething again. He was not instructed to call her. Mr. Nichols did nothing wrong on July 5, 1997. Hefollowed instructions by Ms. Bullington .

Michael E. McGown, Arbitrator Page 5 Case No. G94N-4G-D 98002174

Mr. Nichols has been under psychiatric counseling since January 8, 1997 for job related stress.Management has not shown any compassion at all, but have continually harassed and intimidatedhim on the workroom floor in the presence of his fellow workers . When Mr. Nichols tries to dis-cuss matters with his supervisors, on many occasions he is threatened with a letter of warning orbeing fired This adds to his job stress until Mr. Nichols can not think or function rationally. Onseveral occasions when Mr. Nichols feels threatened he requests the presence of his union repre-sentative but is denied representation. He has been told by Mr. G/ford on several occasions thathe was not going to get union representation. Ultimately he was not allowed to have representa-tion, nor was he allowed time to speak with his union steward during the day nor was he toldwhen he would be allowed to speak with his union steward. We feel that this is done simply todeny the grievant a credible witness.

We feel that Mr. Nichols is being singled out because he was a union steward up until about 2%years ago. The only letter carriers going through this type of harassment and intimidation is Mr.Nichols and the present union steward Mr. Gene Morris.

Mr. Nichols has been on many medications for stress and/or stress related illnesses since January8,1997. Also Mr. Nichols' wife has had to get psychiatric counseling because of the stress that thepost office is causing Mr. Nichols .

On June 17, 1997, Mr. Gifford states that Mr. Nichols informed him that he could not deliver hisroute in 8 hours and then refused to fill out a 3996. This is not totally true. What Mr. Nichols toldMr. Gii ford was, that he did not think that he would be able to finish his route in 8 hours . Mr.G fford told him to fill out a 3996 and Mr. Nichols told him that he would not fill one out at thattime because he wanted to check his DPS mail and his parcels to make sure.

When Mr. Nichols checked his mail he found that there was not as much as he had first thought,therefore he did not have a need to fill out a 3996. Before Mr. Nichols had the opportunity to in-form Mr. G fford that he would be able to deliver his route in 8 hours he was informed that some-one was going to walk with him on his route that day, which he did. Mr. Nichols should have beencommendedfor doing a good job, but instead he was chastised, harassed, and intimidated becauseof trying to make a totally correct estimate of the time he thought it would take to deliver his route .An extension was agreed to for filing at step 2 until 8-11-97 .

CORRECTIVE ACTION REQUESTED : We request that this letter of proposed removal bewithdrawn and the grievant be made whole .

A Step 2 meeting was thereafter held, and on August 27, 1997, in a letter to Union Representative Ray-mond L. Morris, the grievance was denied by Officer-In-Charge Mike Engle, who stated in relevant part as follows(Joint Exhibit No . 2) :

DENIED

No 3996 was found If Charlie did fill one out, he must have kept it as he has done in the past.

The workload did not justfy any overtime on C-II .

Taking into consideration the time Charlie had been walked with and his demonstrated perform-ance this would have been an 8-hour day or less.

No explainable reason was given to warrant overtime .

6-19-97

Michael E . McGown, Arbitrator Page6 Case No. G94N-4G-D 98002174

When the supervisor observed Charlie on his route , he noticed that he was about 30 minutes be-hind No explainable reason was given tojustify overtime.

This was early afternoon. After Charlie's lunch time.

The last three streets were taken from Charlie to allow him to make it in on time . This equates toabout 45 minutes .

This gave Charlie time to separate the mail and begin his route again.

The point is why did Charlie not call to inform management he was running behind? He wouldhave known this while he was at lunch and near a phone . If he were going to wait until threeo'clock he would have been on the other side of the base and this would have taken additionaltime.

This could be an attempt to expand street time. He never made an attempt to note managementhe was late until he was observed and questioned.

6-24-97

When Charlie was observed on the street and asked how he was doing his response was "I amtrying to finish my route. " When asked if he would be on time he replied "if everything carry's ok,I am doing the best I can . "

At that time there was no indication to the supervisor there was any reason he would be late .

The supervisor had no reason to believe it would be any problem for Charlie to make it back ontime.

The question was asked as assurance that the carrier felt he would make it on time.

At that the supervisor acknowledged with an "ok." Therefore the supervisor had no reason tosend anyone to check on or help Charlie .

6-17-97

While the supervisor was going around to the carriers in his morning duties, Charlie informedhim he could not complete his route on time. When asked why he replied "this route is too long. "

He was told to fill out a 3996 to which he replied "Why? You would not approve it anyway. "

He was then told to complete casing his mail pull down and the supervisor would go on the streetwith him .

The results were they were back in early.

Charlie was put on training time and given an M-39 to study on carriers responsibilities and du-ties.

This appeared to be an effort to expand street time .

All extensions were mutually agreed to.

Michael E. McGown, Arbitrator Page 7 CaseNo. G94N-4G-D 98002174

The grievance was appealed to Step 3 of the grievance procedure, and a Step 3 meeting was held. On No-vember 18, 1997, in a letter to National Business Agent Al Sant, Labor Relations Specialist Delward Stracner deniedthe grievance, stating in relevant part as follows (Joint Exhibit No . 2) :

We have considered all available evidence in the record and that offered by the Union at the Step3 Hearing on the above-referenced case.

The grievance is denied.

The removal action was proper. Previous actions have gone unheeded by the grievant . The recordstrongly indicates the grievant is disregarding any and all efforts that management has under-gone, in an effort to allow the grievant to demonstrate that he could be an acceptable employee, orthat he was attempting to correct the unsatisfactory performance.

srs

On November 26, 1997, the grievance was appealed to arbitration .

Provisions of the National Agreement effective August 19, 1995, to remain in full force and effect to andincluding 12 midnight November 20, 1998, (hereinafter referred to as "National Agreement") (Joint Exhibit No . I)considered pertinent to this dispute by the parties are as follows :

ARTICLE 15GRIEVANCE-ARBITRATION PROCEDURE

Section 1. Definition

A grievance is defined as a dispute, difference, disagreement or complaint between the parties related towages, hours, and conditions of employment. A grievance shall include, but is not limited to, the complaintof an employee or of the Union which involves the interpretation, application of or compliance with the pro-visions of this Agreement or any local Memorandum of Understanding not in conflict with this Agreement .

4MM

ARTICLE 16DISCIPLINE PROCEDURE

Section 1 . Principles

In the administration of this Article, a basic principle shall be that discipline should be corrective in nature,rather than punitive. No employee may be disciplined or discharged except for just cause such as, but notlimited to, insubordination, pilferage, intoxication (drugs or alcohol), incompetence, failure to perform workas requested, violation of the terms of this Agreement, orfailure to observe safety rules and regulations . Anysuch discipline or discharge shall be subject to the grievance-arbitration procedure provided for in thisAgreement, which could result in reinstatement and restitution, including back pay .

4i4

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 oth-erwise provided herein, be entitled to an advance written notice of the charges against him/her and shall re-main either on the job or on the clock at the option of the Employer for a period of thirty (30) days. There-after, the employee shall remain on the rolls (non-pay status) until disposition of the case has been had eitherby settlement with the Union or through exhaustion of the grievance-arbitration procedure. A preference eli-

Michael E. McGown, Arbitrator Page 8 CaseNo. G94N-4G-D 98002174

gible who chooses to appeal a suspension of more than fourteen (14) days or his discharge to the Merit Sys-tems Protection Board (MSPB) rather than through the grievance -arbitration procedure shall remain on therolls (non pay status) until disposition of the case has been had either by settlement or through exhaustion ofhis MSPB appeal. When there is reasonable cause to believe an employee is guilty of a crime for which asentence of imprisonment can be imposed, the Employer is not required to give the employee the full thirty(30) days advance written notice in a discharge action, but shall give such lesser number of days advancewritten notice as under the circumstances is reasonable and can be just fed. The employee is immediatelyremoved from a pay status at the end ofthe notice period.

ARTICLE 17REPRESENTATION

Section 1 . Stewards

Stewards may be designatedfor the purpose of investigating, presenting and adjusting grievances .

ARTICLE 19HANDBOOKS AND MANUALS

Those parts of all handbooks, manuals, and published regulations of the Postal Service, that directly relate towages, hours or working conditions, as they apply to employees covered by this Agreement, shall containnothing that conflicts with this Agreement, and shall be continued in effect except that the Employer shallhave the right to make changes that are not inconsistent with this Agreement and that are fair, reasonable,and equitable. This includes, but is not limited to, the Postal Service Manual and the F-21 Timekeeper's In-structions.

«**

ARTICLE 34WORK AND/OR TIME STANDARDS

A. The principle of a fair day's work for a fair day's pay is recognized by all parties to this Agree-ment.

ARTICLE 41LETTER CARRIER CRAFT

*««

Section 3. Miscellaneous Provisions

«««

S. City letter carriers mail counts and route inspections and adjustments shall be conducted in accor-dance with Methods Handbook M-39, Management and Delivery Services, as modified by the parties' Memo-randums of Understanding datedJuly 21, 1981 and October 22, 1984 (incorporated into December 24, 1984Award).

***

Michael E . McGown, Arbitrator Page 9 CaseNo. G94N-4G-D 98002174

POSITION OF THE PARTIES

The Position of the Employer

It is the position of the Employer that the Grievant repeatedly used overtime without authorization and re-peatedly failed to provide management with accurate estimates for delivery of his route . The Employer contends thatit has attempted to correct the Grievant's deficiencies through progressive discipline , although such efforts havebeen unsuccessful. The Employer maintains, therefore, that just cause exists for the Grievant' s removal .

The Position of the Union

The Union takes the position that the Employer did not have just cause to remove the Grievant from his po-sition with the Postal Service. The Union contends that the Grievant acted in accordance with regulations and wasconsistent in the amount of delivery time that he used . The Union further maintains that the Grievant was denied hisright to Union representation during pre-disciplinary meetings with his supervisor .

OPINION

In the resolution of this matter , the Arbitrator is called upon to determine whether the Grievant is guilty ofthe charge of unsatisfactory performance as a result of his use of overtime and his estimates of required deliverytime .

The Employer called Customer Service Supervisor Steven E . Gifford, a former carrier supervisor at theAltus Post Office, to testify concerning his involvement in the Grievant 's removal . Supervisor Gifford noted thatalthough the Notice of Proposed Removal that he authored and signed states that the Grievant did not request over-time on June 14, 1997 , a Form 3996 requesting overtime had been completed by the Grievant and was disapprovedby Supervisor Bullington. Supervisor Gifford related that, on June 19, 1997 , he talked with the Grievant on the streetand provided auxiliary assistance ; however , the Grievant still used overtime to complete his deliveries and told Su-pervisor Gifford that "I 'm doing the best that I can ." On June 24, 1997, according to Supervisor Gifford, he coun-seled the Grievant about using 43 minutes of overtime when no request for auxiliary assistance had been submitted .Lastly, on July 5, 1997, even after providing auxiliary assistance to the Grievant, he is said by Supervisor Gifford tohave used 38 minutes of unauthorized overtime . With respect to the allegation in the Notice of Proposed Removalthat the Grievant improperly estimated his delivery time, Supervisor Gifford testified that he accompanied theGrievant on June 17, 1997 , and the Grievant completed his route 45 minutes early despite having requested auxiliaryassistance . Supervisor Gifford testified that on this day, after they returned to the post office , he instructed theGrievant to spend the 45 minutes reviewing the carriers' responsibilities as presented in the Carriers ' Handbook. Inadditional testimony , Supervisor Gifford explained the general process used in Altus to estimate delivery timesbased on carrier estimates and DPS volume , and he noted that a computerized report is generated indicating the mailvolume for each route . According to Supervisor Gifford , he typically walked around the to the cases in the morningto talk with carriers and determine whether deliveries could be completed within the allotted time , and, if not, carri-ers were to complete a Form 3996 . Supervisor Gifford noted that the DPS mail is at the station when the carriers ar-rive and does not add significantly to delivery time . In discussing the Grievant ' s route, Supervisor Gifford stated thatit consists of deliveries to an Air Force Base residential area and is a"nice" park and loop route with approximately520 stops . Supervisor Gifford additionally noted that when any carrier uses unauthorized overtime, managementcannot make use of the overtime desired list carriers or other straight time workers . As to the Grievant, SupervisorGifford stated that no request had ever been submitted by the Grievant for light duty or family leave and that, ingeneral , the Grievant had no significant use of sick leave . He also stated that he believed that he had referred theGrievant to the Employee Assistance Program .

During cross -examination , Supervisor Gifford provided more detail about mail estimates , pointing out thatwhile clerks do a linear measurement of the trays of mail , DPS mail is an actual piece count . Carriers are not, ac-cording to Supervisor Gifford, required to count or measure mail, but they generally make an assessment of their

Michael E. McGown, Arbitrator Page 10 Case No. G94N-4G-D 98002174

mail volume either before or while casing . He conceded that, while carriers could "glance at" the DPS mail, theywould not necessarily be able to see which trays were theirs, and they were not allowed to review their DPS mailprior to making their time estimates . Supervisor Gibson testified that, while he typically reviewed the mail after ithad been pulled down, he did not do so on June 14, June 19, or July 5, 1997 . He further stated that a carrier who re-quests auxiliary assistance is not required to complete a Form 3996 if the request is denied . When asked about theGrievant's route, Supervisor Gibson stated that he could not recall whether a route inspection had been performedsince the Grievant began to carry the route, although he did recall that one street had been added to the route sincethat time. He maintained that the Grievant did not perform as well when alone, although he declined to say that theGrievant was a poor performer . When shown a copy of a memo that he had sent to Rodney Randall on the Okla-homa City Labor Relations Office (Union Exhibit No . 1), Supervisor Gifford testified that, as the memo recounts, hemet with the Grievant on June 19, 1997, to discuss the performance problems, but he did not recall whether theGrievant asked for a Union steward . When asked about a pre-disciplinary interview, Supervisor Gifford stated thatthis occurred on a Tuesday in July 1997, and, according to Supervisor Gifford, the Grievant did not request a Unionsteward .

The Employer next called Customer Service Supervisor Mitsi Bullington to testify. According to Supervi-sor Bullington, she has supervised carriers since 1994 and was the Grievant's supervisor on June 14, 1997 . On thatdate, the Grievant's request for auxiliary assistance was denied by Supervisor Bullington because she did not believehis workload warranted such assistance . She maintains that she gave the Grievant a direct order to return to the sta-tion on time, an order that he wrote on his Form 3996 (Management Exhibit No . 2). Supervisor Bullington notedthat on July 5, 1997, she did approve 1 .25 hours of auxiliary assistance, yet the Grievant still used an additional 38minutes of time without approval and without amending his Form 3996 . In discussing mail volume estimates, Su-pervisor Bullington stated that carriers should be able to know the volume of their DPS mail because they can see itas they enter the station ; however, she also conceded that carriers are not permitted to go to the back and look attheir individual DPS mail trays .

Officer-in-Charge Mike Engle testified that he had been in Altus since February 1997 and that he hadtalked with the Grievant in either May or June 1997 concerning the latter's performance . Mr. Engle stated that hewent with the Grievant on the route once in April 1997. He recalled that the mail volume was light on that day andthat he had said to the Grievant, "You did an adequate job today ." Mr . Engle did not recall that the Grievant was ex-periencing any medical or psychological problems, although he stated that, at the meeting in which the Grievant'sperformance was discussed, the Grievant expressed a fear that he would be removed .

The Employer called George Frame, Post Office Operations Manager for the Oklahoma City District, totestify concerning his role in the removal of the Grievant. However, it became readily apparent that Manager Framehad no first-hand knowledge of the underlying events, and his testimony therefore need not be recounted here .

The Union then called the Grievant to testify. According to the Grievant, he has been a carrier in Altus foreighteen years and, during the period from 1983-1996, he served as Union steward . He stated that he began to carryRoute 011 in February 1996, shortly after a route check had been performed . The Grievant was asked about the spe-cific days listed in the Notice of Proposed Removal, and with respect to June 14, 1997, he stated that he asked Su-pervisor Bullington for overtime, telling her that "to the best of my knowledge, that's how much time I need ." OnJune 17, 1997, according to the Grievant, he was ordered to complete a Form 3996 after requesting overtime . Sub-sequently, he discovered that he had less DPS mail than he thought, and he informed Supervisor Gifford that hewould not need the overtime after all . With respect to the DPS mail, the Grievant maintained that it was not alwaysat the station when carriers arrive and that, in any case, carriers are not permitted to review it prior to making theirtime estimates. On June 19, the Grievant recalled that Supervisor Gifford found him on his route twice, and theydiscussed overtime . The Grievant recalled asking Supervisor Gifford for one hour of overtime but was given onlyGrievant 45 minutes; ultimately, however, he used only about 15 minutes of overtime . The Grievant noted that,during this time, it was an almost daily occurrence to request overtime, although carriers had difficulty getting over-time approved. Concerning the incident on June 24, 1997, the Grievant stated that he asked Supervisor Gifford forovertime and Gifford responded by saying "I'll come and check on you later ." Although the Grievant left late thatday and needed help, he was not provided any assistance and so completed his deliveries, using 43 minutes of over-

Michael E. McGown, Arbitrator Page 11 Case No. G94N-4G-D 98002174

time. The Grievant related that on July 5, 1997, he requested 1 .25 hours of auxiliary assistance prior to learning thathe had a high volume of DPS mail . Although he then asked Supervisor Bullington for additional assistance, she in-formed him no other help was available .

The Grievant related that on June 19, 1997, Supervisor Gifford ordered the Grievant into the office and,when the Grievant requested a steward, Supervisor Gifford told him that no steward was needed . The Grievant testi-fied that he made a second request for a steward, and Supervisor Gifford stated that a steward would not be allowedinto the office. The Grievant stated that he told Supervisor Gifford he would not answer any questions unless asteward was present. He admitted that he then turned his chair around and declined to respond to Supervisor Gifford .When informed by Supervisor Gifford that he could be removed, the Grievant again asked for a steward . Concerningthe pre-disciplinary interview, the Grievant could not recall the date on which it occurred ; however, he did recallthat Supervisor Gifford would not meet with both the Grievant and the steward .

When asked about his alleged performance problems, the Grievant stated that he had no problems beforebeginning Route 011 . However, he believed that the route was overburdened when he began it, and that additionalstreets placed on the route subsequently had made delivery times even longer. He related that he had asked for aroute check and for route adjustments, without success . He discussed specific complaints made by Supervisor Gif-ford concerning his time-wasting practices and defended his conduct . By way of example, he noted that he parkedhis vehicle so that he would not have to back up, and while the location suggested Supervisor Gibson was closer, itwas also in an angle parking area that would require backing . With respect to an order that he combine relays everyday, he stated that he attempted to do so but was able to demonstrate that it was not practical on most days . In re-sponding to Supervisor Gifford's observation of the Grievant's walking speed, he conceded that his pace probablyslows as the day wears on, when he becomes hot and tired; nevertheless, he stressed that he is not on the overtimedesired list, that he does not want to work overtime, and that his only objective is to complete his deliveries to hiscustomers as quickly as possible . He additionally related that, as a result of job-related stress, he went to the Em-ployee Assistance Program on his own, several months prior to being ordered to do so .

The foregoing summary represents only the highlights of the testimony presented ; and it should be apparentthat each side made additional points that have not been delineated in this Opinion . After listening to the presenta-tions made by the parties, it seems clear to the Arbitrator that the justness of this removal action requires a judgmentabout the witnesses' candor and credibility . In this regard, the Arbitrator notes for the record that the Employersubmitted eight previous awards in which carriers were disciplined for unauthorized overtime use . While the disci-pline was upheld in each case, several of the arbitrators stressed the importance that witness credibility had played inreaching their respective decisions . Such is the situation in the matter at hand, for the Grievant appeared to be aforthright and truthful witness, who seemed genuinely interested in performing his task to the best of his ability .Thus, it is difficult to comprehend why, after eighteen years of service, he would suddenly-and in such a short pe-riod of time-become so unreliable as to require his swift removal . It also seems highly unlikely that the Grievant,an experienced steward, would fail to request Union representation at a meeting in which his performance was to bediscussed, and both his testimony and Supervisor Gifford's memorandum concerning the meeting demonstrate thatthe possibility of the Grievant's removal was raised .

As to the specifics of the charges themselves, the parties do not disagree that the Grievant used the amountof overtime as stated in the Notice of Proposed Removal-rather, they seem to disagree on whether that overtimewas an attempt by the Grievant to expand his street time, as the Employer urges, or whether it was used in an honesteffort to complete deliveries, as the Union maintains . Coupled with this use of overtime is the charge that theGrievant failed to provide "an accurate estimate" for the delivery of his route, and according to the Notice of Pro-posed Removal, he has been so charged at least twice in the past . Several aspects about these charges are troubling .First, it seems to the Arbitrator that if a carrier is expected to make an estimate, then it is unreasonable for manage-ment to fault the carrier when the estimate proves not to be accurate. An estimate is, by definition, a rough calcula-tion, while accurate means "having no errors ." Thus, the two terms are, at least in the mind of this Arbitrator, some-what incongruous. Second, it is hard to comprehend how a carrier can be expected to make such an accurate esti-mate when the carrier is not permitted to see the DPS mail that forms part of the entire volume of mail that he willbe expected to deliver. Evidence offered at the Hearing (Union Exhibit Nos. 2-6) shows the volume of mail deliv-

Michael E. McGown, Arbitrator Page 12 Case No. G94N-4G-D 98002174

ered by the Grievant on the days in question. These records indicate that DPS mail volume ranged from a low of 721pieces on June 19 to a high of 2,517 on July 5 . Given that the latter amount is over three times as much as the for-mer, it is difficult for the Arbitrator to credit the testimony of Supervisor Gifford that DPS mail does not add signifi-cantly to delivery time . Nor is it likely that a carrier could accurately assess his time requirements in the absence ofsuch information. In a similar vein, it is noted that the Grievant's total available volume ranged from a low 9 .25(with 6 parcels) on June 24 to a high of 24 .00 (with 26 parcels) on July 5 . Nonetheless, the Arbitrator was presentedwith supervisory testimony suggesting that the number of parcels that a carrier has to deliver does not increase sub-stantially the time required to complete the route . These claims by the Employer are simply not deemed credible bythe Arbitrator . As a result, it is the conclusion of the Arbitrator that the second charge-failure to provide an accu-rate estimate for delivery-cannot be sustained, for the Employer's own witnesses agreed that carriers were beingasked to make accurate estimates without having full knowledge of the quantity of mail that they would be requiredto deliver. Additionally, the Employer conceded that the allegation in Specification I of the charge-that theGrievant failed to request overtime on June 14, 1997-was not accurate . As neither of the specifications in the No-tice of Proposed Removal can be fully supported by the evidence submitted and the testimony presented at theHearing, the Arbitrator is required to find that the Employer lacked just cause to remove the Grievant .