REGULAR ARBITRATION PANELSOUTHERN REGION

In the Matter of Arbitration Underthe Labor Agreement Between

UNITED STATES POSTAL SERVICEThe Employer or Service

-and-

NATIONAL ASSOCIATION OF LETTERCARRIERS, AFL-CIO

The Union

BEFORE: NICHOLAS DUDA JR., ARBITRATOR

APPEARANCES :

For the U.S . Postal Services :

GRIEVANT: Broadus Jenkins

POST OFFICE: Little River Station, Miami, FL

MANAGEMENT CASE NOS: H90N-4H-D96007523H94N-4H-D96037492

UNION CASE NOS: MIA 95734/GTS 026773MIA 951163

ND NO: 1838)

Toby L. LoweLabor Relations SpecialistU.S. Postal Service2200 N.W. 72nd AvenueMiami, Florida 33152-9401

For the Union: Laurie MialeSecreta ryTropical Branch 1071South Florida Letter Carriers70 N.E. 39th StreetMiami, Florida 33137-3694

Place of Hearing: Miami, FloridaDate of Hearing: June 4,1996Date of Award: July 19, 1996

AWARD

The grievance is sustained .

The Service is directed to rescind the subject removal and reinstate Grievant to active

employment as his physical condition permits, restore his continuous service and make him whole for

all lost wages and benefits . The Arbitrator retains jurisdiction solely in respect to implementation of this

Award until September 30, 1996 to receive any written issue about meaning, compliance or satisfaction

of this Award from either Party and thereafter render an appropriate decision .

Matthew Rose , t.r,is .:National Business Agentn n n n n n n C Nicholas Duda Jr., Arbitrator

J U L 2 5 1995n

uuvuu a LJURegion 9

H90N-4H-D96007523 ND 1838 PAGE 2

SUBJECT:

To support a removal, the Service used exactly the same charges and factual allegations

previously used to support a removal overturned by an arbitrator .

NATURE OF THE CASE

On August 16, 1994 Grievant was issued a Notice of Removal based on charges of

submitting "fraudulent medical documentation" and being "AWOL" for a specific period.

Grievances protesting the notice and the subsequent removal were processed through the

grievance procedure and appealed to arbitration where they were heard by Arbitrator Britton in a

consolidated hearing . At arbitration and in the Posthearing briefs , the Union argued there was

not just cause for removal because :

1 . The documentation Grievant submitted was authentic ;

2. Grievant "did not attempt to deceive the Employer .about his absence;" and

3. " . . . as a result of due process violations . . ., the grievance should be sustained ."

Mr. Britton said:

. . .the Arbitrator is required to conclude that Article 16, Section 8 . . . was grievouslyviolated in this instance and the discipline therefore must be nullified .

Based on the foregoing conclusion , it is deemed to be unnecessary to the resolutionof this matter that he further address the remaining due process issues raised bythe Union or that he proceed to a consideration of the merits of the case .

Mr. Britton s Award stated :

For the reasons given, the grgrievance[sic] is sustained and it is directed that theGrievant be reinstated and the Notice of Proposed Removal rescinded andremoved from all records and files and the Grievant reimbursed for all lost wagesand benefits .

After receiving the Britton decision the Service sent Grievant written notice to report back

to work where he was told he would be paid lost wages and benefits but he was being placed on

administrative leave immediately pending consideration of charges "submission of fraudulent

medical documentation . . . [ and] unsatisfactory attendance due to AWOL"- exactly as charged in

the removal a year earlier . Shortly thereafter supervisors issued a Notice of Removal and

Decision of Removal having the exact same wording used for the removal which had been

H90N-4H-D96007523 ND 1838 PAGE 3

challenged in the grievance granted by Mr . Britton .

The Union filed a grievance against the Notice of Proposed Removal and another

grievance protesting the actual removal subsequently issued . The Parties agreed to "combine for

further processing" (consolidate) the two grievance cases. This decision decides the issues in the

two grievances.

FILE FOR GRIEVANCE PROTESTINGTHE NOTICE OF REMOVAL

(H90N-4H-D96007523)(MIA 95734)

8/2/95 Notice of Proposed Removal to Grievant Signed by Little River Station ManagerVirginia McGinnity

. ..it is proposed to remove you . . . no earlier than 30 days from the date you receivethis letter . The reason(s) for this proposed action are as follows :

CHARGE NUMBER ONE

On June 30, 1994, Mr . Ed Jones, Supervisor at the Little River Branch Post Office,Miami FL, telephoned the Inspection Service . Mr. Jones advised that you returnedto work after a 66-day absence . He also advised that you had possibl submittedfalse medical documentation in an effort to justify your absence . Mr. Jones statedthat he called the telephone number on the medical release submitted by you anddetermined the medical release may have been falsified . Mr. Jones stated that headvised you of his findings and you left the post office, advising that you wishedto be placed on sick leave .

Mr. Jones advised he had sent a letter to the medical office where you allegedlyobtained the medical documentation . Mr. Colyer responded in writing to Mr .Jones' inquiry.

On July 14, 1994 , Inspectors M. A. Link and R. B. Hartline personally interviewedMr. Leroy Colyer at the Overtown Community Health Center , 1550 NW 3 Avenue,Miami FL. Mr. Colyer stated the letter you have given to Mr . Jones had beenaltered . He stated although it contained the Overtown Community Health Centerlogo, it was indeed a copy and not an original letter . He further advised that thesignature ap pearing on the nurses line is not a signature of the Community HealthCenter employees . He also stated a review of the Center 's index card filedetermined an 11 year-old male was the only Broadus Jenkins in the file . Mr.Colyer also advised a review of the sign-in log on June 6, 1994 , did not reveal thename of Broadus Jenkins. Mr. Colyer also stated that he does not know of anytreatment for hemorrhoids not requiring surgery that would keep any person outof work for over thirty (30) days .

The signature of Jannie Williams appears on the bottom line (Nurse signature) ofthe medical release provided by you. Ms. Jannie Williams was personallyinterviewed by Postal Inspectors M A. Link and R . B. Hartline at 1550 NW 3

H90N-4H-D96007523 ND 1838 PAGE 4

Avenue, which serves as a satellite office for the Miami-Dade Community College .This office shares space with the Overtown Community Health Center . Ms.Williams advised that she and you were married at one time and had two childrentogether. She also advised that she divorced you in 1985 . She further advised thatshe did not sign the bottom on the medical release papers submitted by you . Shealso stated that she was at work on June 14, 1994, and she did not see you that day .She also stated that her 11 year-old son is also named Broadus Jenkins and that hehas a card on file at the Overtown Community Health Center .

You were contacted via telephone by Inspector Link on July 26, 1994 . You agreedto meet with Inspector Link on July 27, 1994, to discuss the medical documentationthat you had submitted to Mr . Jones. You did not meet with Inspector Link on July27, 1994, and further attempts to contact you have been unsuccessful .

As a Postal Employee, you are expected to discharge your duties conscientiously,and effectively . In addition, you are required to be honest, reliable, trustworthy,courteous and of good character and reputation . Employees are expected to beloyal to the government and uphold the policies of the Postal Service . You arecharged with failure to meet the requirements of your position due to conductunbecoming of a postal employee due to submission of fraudulent medicaldocumentation.

CHARGE NUMBER TWO

A review of your attendance record has revealed that on the following dates, youhave failed to report for duty as scheduled in the amount of time listed below :

Date Hours T~ e of LeaveApril 23 - June 20,1994 322.00 Hours AA OW LYour reasons for not reporting for duty as scheduled on the occasions noted abovewere not acceptable and you were charged AWOL . You are charged with failureto meet the requirements of your position due to unsatisfactory attendance due toAWOL.

Virginia I. McGinnitySupervisor

8/18/95 Standard Grievance Over Branch 1071 President Burroughs' Name and Signed byUnion Advocate Miale

Step 1 Meeting: Held on (Date/Time) Aug. 11, 1995

Between USPS Representative : Mrs . L. Anderson

Craft Seniority Date : 6/9/73USPS Seniority Date: 6/9/73

Step 1: Rendered on (Date/Time) Aug. 12,1995 Sup . L. Anderson

Violation: (Art. & Sect) Art. 16, 15 .4

Facts What Happened: The Grievant was issued a Notice of Proposed Removalfor alleged conduct unbecoming a postal employee and AWOL . The notice is forthe exact same charges as a Notice of Proposed Removal dated 8/16/94 which was

H90N-4H-D96007523 ND 1838 PAGE 5

arbitrated and sustained by Arbitrator R . Britton. The issuance of the proposedremoval is in total violation of the provisions of Article 15 .4 of the NationalAgreement. This is an extreme case of double jeopardy since the Grievant willhave to litigate this issue twice .

Union Contentions: It is impossible under the circumstances for him to be fullygranted due process rights and the National Agreement . It is clear his secondremoval was ordered by high level officials of the USPS which will precludecompliance with Article 15 .2 of the National Agreement . The Grievant hasmaintained all along he is not guilty of the charges against him and has providedexplanation which Management refuses to consider. The action taken is punitivein nature and without just cause, as well as arbitrary, capricious and disparate .

Corrective Action Requested: Section 115 of the M-39, as well as Section 374 ofthe ELM have been disregarded . Rescind the Notice of Proposed Removal andexpunge from all records and files . Compensate the Grievant for all lost wagesand benefits to include overtime .

9/13/95 Step 2 Decision by Step 2 Service Designee Lori Costa

Based on the information presented and contained in the grievance file, thegrievance is denied.

Detailed Reasons for Denial : Although the arbitrator sustained the 1st letter ofremoval and returned the employee to duty, the settlement was based onprocedural defects, rather than the merits of the case . Procedural error should notbe harmful or fatal to the disciplinary action issued . The procedural defects werecorrected, and therefore this discipline can be reissued .

10/16/95 Letter of Addition and Correction by Branch Executive Vice PresidentMike Gill

. . .This will serve as the Union's letter of addition and correction . . . .

Management issued a Notice of Proposed Removal to the grievant on August 16,1994, and ultimately removed the grievant . . . . This case was arbitrated and anaward was issued by Arbitrator Britton dated July 3, 1995 . . . .

Management now claims because the arbitrator did not address the merits, theyare within their rights to correct the procedural flaws and fire the grievant again .The Union believes management's position is incorrect. Management reissued theNotice of Proposed Removal dated August 2, 1995, which contains the samecharges .

The grievant has provided a more than adequate explanation concerning thecharges. The union advocate, Laurie Miale, clearly explained the Union's

H90N-4H-D96007523 ND 1838 PAGE 6

contentions in her post hearing brief for the first removal .

Management expects the grievant to follow all the rules and regulations.However, in this case, management committed several procedural errors in thefirst removal that you now expect to have those flaws excused and start all overagain.

Arbitration as negotiated by the parties is final and binding. These proceduralerrors were pointed out at the outset of the grievance-arbitration procedure .Management, as usual, chose to ignore these claims and blindly allowed the caseto proceed to arbitration.

The designees for the Postal Service at all steps were suppose to have the authorityto settle the grievance . The second time around appears to be no different basedon the decision rendered at Step 1 and Step 2 .

This action constitutes double jeopardy .

Include this letter as part of grievance file MIA 95-734 .

10/16/95 Step 3 Appeal by Branch Vice President Mike Gill

. ..We are appealing the above-captioned case to Step 3 due to an adverse decisionat Step 2, and our belief that this case warrants further appeal . . . .

11/15/95 Step 3 Decision by Labor Relations Specialist Bledsoe

. . .it is my decision to deny the grievance .

. ..the grievant had been issued an earlier discharge which was overturned atarbitration due to procedural errors the arbitrator determined to affect due process .However, the arbitrator did not reach the merits of the case . This case concernsthe reissuance of the removal after curing the procedural defects which had beenconsidered by the arbitrator . While the union now alleges double jeopardy, thereis no indication of any other procedural arguments in the file. Managementcontends that it is not improper, and does not constitute double jeopardy, tocorrect procedural errors as in this case. The merits remain to be considered .Clearly, the grievant submitted falsified medical documentation to support anextended absence, resulting also in a charge of AWOL, as noted in the removalaction. Under these circumstances, the action was issued for just cause .

Unsatisfied with that decision National Business Agent Rose appealed to arbitration .

At the arbitration hearing, the Parties presented extensive argument and evidence, both

documentary and testimonial, as well as court and arbitration decisions . At the conclusion of the

hearing Grievant expressed his appreciation and satisfaction with his representation by the

H90N-4H-D96007523 ND 1838 PAGE 7

Union. No Posthearing briefs were requested or offered .

POSITIONS OF THE PARTIES AT ARBITRATION

UNION POSITION

OPENING

At the offset we must raise the issue of arbitrability in this case . The grievant wasissued a notice of proposed removal in August of 1994 for the same exact charges . . .The Postal Service has embarked on a mission to totally destroy the basic conceptof Article 15 .4 that states decisions all decisions of an arbitrator are final andbinding .

Arbitrator Britton ruled that Management grossly violated the grievants dueprocess rights when they issued the first removal . . . . the flaws of this case can notbe corrected since the guilt of the grievant has been assumed by everyone from EdJones to Virginia to Carlos to Inspector Link . We can notgo back in time to erasethe foregone conclusions by these individuals . The previous discharge has foreverprejudiced the grievant and precluded any fair investigation , due process underArticle 15 and at the reviewing official at his response to the proposed adversereaction.

We will tear apart the facade created hear today that somehow the slate was cleanand management could start over .

We will once again let the grievant tell his side of the story , a side that has beenignored for almost 2 years . He will explain the medical treatment he received andhow the documentation was provided to him . He will speak the truth in thismatter and while his efforts to substantiate his absence may not have been of thehighest standard, they were not in act fraudulent as asserted by the agency nor didhe in any way attempt to deceive or misrepresent the facts to management .

We will show how lax management at Little river was in their approach towardmedical certification re quirements . We will show how none of the requirements ofthe Family and Medical Leave Act were adhered to even though the grievant wasclearly suffering from a covered condition.

we will appeal to your sense of fairness . As the advocate arbitrating this case forthe second time, who spent hours preparing a strategy to defend the grievant andhours articulating the union's position in the brief filed at Arbitratior Britton srequest, I will ask you to place this matter to rest once and for all, and sustain theunions position clearly and unequivocally to prevent relitigation for a third time .

H90N-4H-D96007523 ND 1838 PAGE 8

SUMMARY OF UNION CLOSING

1 . The Service is barred by Section 15.4 of the Agreement from repeating identical charges

and reasons to support removal after Arbitrator Britton s "Final and Binding Award."

2. The processing of the second removal was not fair and objective, precluding a fair

hearing and result .

a. Station Manager McGinnity who initiated, processed and issued the removal was

biased and unobjective from the time she read Mr . Britton s decision.

b. The decision to again remove on the same charges and evidence was irrevocably

made by Management before any pre-disciplinary interview of Grievant who had

no chance to affirmatively influence supervision .

c. The decision to remove was made at the highest level of area Postal Management

and Division, then imposed on lesser officials required to concur to satisfy Section

16.8. Service Management was committed - even before ordering Grievant to report

pursuant to the Britton award - to issue another removal on the same charges and

perfunctorily process the expected grievances through the " Grievance - Arbitration"

Procedure to get a decision "on-the-merits ."

d. Supervisor Anderson announced at the Step 1 discussion that the Service intended to

take the case to arbitration for a decision on the merits .

e. Now there cannot be a decision solely on the merits because the Service has again

prejudiced and flawed the processing by another set of due process violations .

The grievance should be sustained, and the remedy requested in the grievance should be

granted . Grievant should be reinstated and paid all lost wages and benefits .

POSTAL SERVICE POSITION

Arbitrator Britton did not reach a decision on the merits because of a procedural defect .

That defect was cured and now the Service wants a decision on the merits . There is no double

jeopardy , because no decision on the merits was given in the first arbitration . Grievant was

reinstated as ordered by Britton . The subject arbitration concerns a different removal . This action

H90N-4H-D96007523 ND 1838 PAGE 9

was authorized by a Federal Circuit Court decision . Other arbitrators have approved this type of

action. Contrary to the Union claim, there was no procedural error in the second removal.

The case . . . involves a Notice of Proposed Removal dated August 2, 1995 and aLetter of Decision dated October 10, 1995 . . . .

. . . the Grievant did in fact submit false documentation and that he was properlycharged AWOL .

The Postal Service has a right to expect its workers to regular in attendance and tomaintain The grievance should be sustained, and the remedy requested in thegrievance should be granted their assigned schedules. Also, when instructed, toacceptable provide necessary documentation.

The Postal Service has the right to expect its workers to be honest, trustworthy andcandid. An employee who knowingly gives false and inaccurate information,strikes at the very heart of the Employee-Employer relationship .

The grievance should be denied .

ISSUE

Whether the Service violated Articles 15 and/or 16 of the Agreement by removing

Grievant, and if so, what remedy is appropriate?

RELEVANT PROVISIONS IN THE SUBMISSIONS

THE LABOR AGREEMENT

ARTICLE 15 "Grievance -Arbitration Procedure"

Section 4. Arbitration

A. General Provisions

6. All decisions of an arbitrator will be final and binding . All decisions ofarbitrators shall be limited to the terms and provisions of thisAgreement, and in no event may the terms and provisions of thisAgreement be altered , amended, or modified by an arbitrator . . . .

H90N-4H-D96007523 ND 1838 PAGE 10

ARTICLE 16 "Discipline Procedure"

Section 1. Principles

In the administration of this Article, a basic principle shall be that discipline shallbe corrective in nature, rather than punitive. No employee may be disciplined ordischarged except for just cause . . . . Any such discipline or discharge shall besubject to the grievance-arbitration procedure provided for in this Agreement,which could result in reinstatement and restitution, including back pay .

Section 8. Review of Discipline

In no case may a supervisor impose suspension or discharge upon an employeeunless the proposed disciplinary action by the supervisor has first been reviewedand concurred in by the installation head or designee .

THE EMPLOYEE AND LABOR RELATIONS MANUAL

511.4 Unscheduled Absence

511.41 Definition. Unscheduled absences are any absences from work that are notrequested and approved in advance .

513.36 Documentation Requirements .

513.3613 Days or Less. For periods of absence of 3 days or less, supervisors mayaccept the employees' statement explaining the absence . Medical documentationor other acceptable evidence of incapacity for work is required . .. when thesupervisor deems documentation desirable for the protection of the interests of thePostal Service .

513.362 Over 3 Days . For absences in excess of 3 days, employees are required tosubmit documentation or other acceptable evidence of incapacity for work .

513.363 Extended Periods . Employees who are on sick leave for extended periodsare required to submit at appropriate intervals, . .. satisfactory evidence ofcontinued incapacity for work unless some responsible supervisor has knowledgeof the employee's continuing incapacity for work .

513.364 Medical Documentation or Other Acceptable Evidence. Whenemployees are required to submit medical documentation pursuant to theseregulations, such documentation should be furnished by the employee's attendingphysician or other attending practitioner . . . .

513.365 Failure to Furnish Required Documentation . If acceptable proof ofincapacitation is not furnished, the absence may be charged to annual leave,LWOP, or AWOL .

H90N-4H-D9600 7523 ND 1838 PAGE 11

661.53 Unacceptable Conduct. No employee will engage in criminal, dishonest,notoriously disgraceful or immoral conduct, or other conduct prejudicial to thePostal Service . . . .

666 USPS Standards of Conduct

666.2 Behavior and Personal Habits

Employees are expected to conduct themselves durin g and outside of workin ghours in a manner which reflects favorabl y upon the Postal Service . . . . the PostalService . . . does require that postal personnel be honest , reliable, trustworthy, . .. andof good character and reputation. . . .

666.81 Requirement for Attendance. Employees are required to be regular inattendance .

THE MANAGEMENT OF DELIVERY SERVICES HANDBOOK, SERIES M-39

115 Discipline

115.1 Basic Principle

In the administration of discipline, a basic principle must be that discipline shouldbe corrective in nature, rather than punitive . No employee may be disciplined ordischarged except for just cause. The delivery manager must make every effort tocorrect a situation before resorting to disciplinary action .

115.2 Using People Effectively

Managers can accomplish their mission only through effective use of people . Howsuccessful a manager is in working with people will, to a great measure, determinewhether or not the goals of the Postal Service are attained . Getting the job donethrough people is not an easy task, and certain basic things are required, such as :

a. Let the employee know what is expected of him or her .b. Know fully if the employee is attaining expectations ; dor t guess - make

certain with documented evidence .

c. Let the employee explain his or her problem - listen! If given a chance, theemployee will tell you the problem . Draw it out from the employee if needed, butget the whole story .

115.3 Obligation to Employees

When problems arise, managers must recognize that they have an obligation totheir employees and to the Postal Service to look to themselves , as well as to theemployees, to :

A. Find out who , what, when, where, and why.

b. Make absolutely sure you have all the facts .

c. The manager has the responsibility to resolve as many problems aspossible before they become grievances .

H90N-4H-D96007523 ND 1838 PAGE 12

d. If the employee's stand has merit, admit it and correct the situation . Youare the manager; you must make decisions; don't pass this responsibility on tosomeone else .

ANALYSIS

FINDING OF FACT

Copies of Mr. Brittori s decision dated July 3, 1995 were distributed within the Union and

the Postal Service . Labor Relations sent a copy to Little River Manager Virginia McGinnity to

carryout the Award .

According to her testimony in arbitration, Ms . McGinnity has held the position of

manager of Little River Station since 1992, but had been absent on maternity leave from October

1993 until a few days after Acting Manager Ed Ford had issued Grievant the Notice of Proposed

Removal in August 1994 . On or about August 20, 1995 McGinnity returned, and Ford was

transferred elsewhere .

Ms. McGinnity had not been involved in issuing the 1994 removal to Grievant, but she

was at Little River when the grievances protesting the removal were processed. On reading Mr.

Britton's decision Ms . McGinnity became "upset," (her word) because there had been no

"decision on the merits ." She called Miami Labor Relations to register her protest . Labor

Relations said Mr. Brittori s decision was final and binding. Ms. McGinnity then called several

other, higher-ranking officials she knew, including Carlos Roden, Acting Manager of Operations

North, and Allan Bane, District Manager of Human Resources . She was told by Mr. Bane that in

some circumstances and forums there is a second "hearing on the merits" after a procedural

failure is corrected . McGinnity expressed her desire to "repeat" the removal action and get a

decision by another arbitrator . According to the evidence, her request to repeat the removal

action against Grievant was proposed to and approved by the Southeast Area Office in Memphis,

TN.

Thereafter the Miami Labor Relations Office prepared a letter notifying Grievant to report

H90N-4H-D96007523 ND 1838 PAGE 13

to Little River Station at a specified date and time. When he clocked in he was taken to Ms .

McGinnity who told him he was placed on administrative leave pending review of possible

discipline on the charges of submission of fraudulent medical documentation and AWOL the

prior year. Grievant said those charges had been thrown out by Arbitrator Britton, to which

McGinnity replied the charges would be taken to another arbitrator. Ms. McGinnity asked if he

had any answer for the charges . He said he had already answered them . The "pre-discipline

meeting" was terminated.

The Labor Relations Department prepared a "Notice of Proposed Removal" to Grievant

which was identical to the letter given him a year earlier with changes only in the date of the letter

and with a signature line for Virginia McGinnity instead of Supervisor Anderson . The Letter was

sent after the manager signed.

The First Step meeting was held with Supervisor Anderson . Her position was that the

matter would be taken to another arbitrator for a decision "on the merits ." There was no change

in positions through Step Three, after which the Union appealed to arbitration .

EVALUATION AND CONCLUSIONS

We have considered the arguments, evidence and the citations by the Parties . For reasons

explained below we find that the grievances must be sustained.

In the industrial relations community arbitrators and practitioners have long recognized

that discipline, including discharge, may be modified or overturned in arbitration if basic notions

of fairness or due process were not been observed . This principle is especially true in respect to

labor agreements having specific procedural requirements for discipline . The National

Agreement between The Postal Service and The National Association of Letter Carriers, among

others, has a number of such provisions . Legions of Postal Service arbitration have recognized

the principle .

When a Postal Service Arbitrator finds the Service did not fulfill required action or

commited conduct prohibited by "the terms and provisions of this Agreement," the Arbitrator

H90N-4H-D96007523 ND 1838 PAGE 14

may disturb a concerned discipline provided he/she does not alter,'amend or modify those terms

and provisions . Whether the arbitrator invokes the power to modify or overturn a discipline

usually depends on the arbitrators finding on how prejudiced the disciplined employee was by

the Service's improper action.

Arbitrator Britton found the Service "grievously violated [Article 16, Section 8] in this

instance and the discipline therefor must be nullified ." The Service does not contest Arbitrator

Britton's finding or his action in "nullifying" the removal and reinstatement etc .. The Service

says it accepted Mr . Britton's action in respect to the 1994 removal, but then repeated it in 1995

while "correcting" certain procedural errors . We find the Labor Agreement requires us to find

the current removal to be improper .

Mr. Brittori s Award directed the Service to reinstate Grievant and make him whole . That

decision was "final and binding" provided it did not change the Agreement . There is no

suggestion by the Service that the decision was not proper or not final and binding .

The normal meaning of "reinstate" in this context is "to restore to a former condition in

respect to seniority and work ." The dispute which brought the Parties to arbitration concerning

Grievant's conduct was supposed to be ended by Mr. Briton's decision. By reinstituting removal

on the same charges and allegations the Service did not obey Mr . Brittori s Award . The Service

did not truly reinstate Grievant; it just told him to clock in so he would again be an employee

against whom the charges could be reinstituted .

When Ms. McGinnity first conveyed her "upset" to Labor Relations, the latter relied on the

"final and binding" language in the Agreement to explain their unwillingness to pursue the

"merits" as she wanted. Labor Relations did not believe Mr . Britton had left the door open for the

Service to get "another bite of the apple." When the possible argument was later raised by

Human Resources, the Service could have straightforwardly sought a review from Mr . Britton of

whether his decision and Award permitted the "procedural correction and decision on the

merits" approach. The Service did not request a clarification etc . from Mr. Britton. In the absence

of that action, the normal meaning of reinstate must be observed.

H90N-4H-D96007523 ND 1838 PAGE 15

Only one other approach was available to the Service , and it would have required a

showing of several conditions. That is, the Service could have sought to vacate the decision in

Court, as it did in 1989 ( USPS vs. NALC, 847 F . 2d 775; 11th Circuit) . The short answer is that the

Service did not directly seek vacation . It chose to go to another arbitrator and ask him to follow

an 11th Circuit Court decision in a 1989 case . First, this Arbitrator applies the Labor Agreement

and is not bound by the Court's decision . Second , the situation here is not at all the same as the

court case where the Service and the Courts argued the arbitrator had erred . Here there is no

charge of error by Mr . Britton. Third, we believe very strongly that the 1989 Circuit decision was

incorrect in ignoring the many Postal Service arbitrators who have held that

The review/ concurrence provisions of Article 16,8 of the National Agreement is anessential and fundamental ingredient of the grievance process . (Zumas in DR-31-88, March 20,1989)

In any event, the 11th Circuit case relied on its direct finding that the arbitrator was

arbitrary and capricious , a finding we would not make even if the Service had so claimed, which

it did not . Arbitrators such as Mr . Britton, who overturn employer discipline based on the

Employer's violation of express procedural requirements, are interpreting and applying the

Agreement.

Arbitrator Britton "nullified" the removal , just as Arbitrator Howard "voided" the

discipline in the similar case mentioned above decided by Arbitrator Zumas . As Mr. Zumas said :

He did not dismiss the case without prejudice to the Service's right to reinstitutethe proceedings . The Service had no recourse and could not proceed further .

The 1995 removal could only be permitted if it were different from the 1994 removal in

respect to charges and / or alleged facts, or if Mr. Britton s decision was not final and permitted

reinstitution of the same removal action . The Service concedes the 1995 removal was identical as

to charges and underlying conduct alleged . However, the Service insists there was no bar to

repeating removal, because Mr. Britton did not consider the "merits of the case," in effect making

his decision other than final and binding .

Mr. Britton used the word "merits " in relation to the alleged conduct on which Grievant's

removal had been based . The Service has used the word "merits" to establish a claim for a ruling

V

H90N-4H-D96007523 ND 1838 PAGE 16

on the issue of the rightness or wrongness of conduct by Grievant . The Service is not so entitled .

It was entitled to a ruling on whether it had just cause to remove; Mr. Britton said "no" and

ordered reinstatement. He was not required to rule on both components of just cause, "merits"

and "procedure." We have not been shown where Article 16 or any other Labor Agreement

Article justifies reinstituting a removal held in arbitration to be without just cause because of a

prejudicial procedural violation .

The Service is reluctant to criticize Arbitrator Brittori s failure to consider the entire case .

Instead it adopts an attitude of "We'll keep trying until we get it right ." The practical effect is the

second removal was issued more than a year after the questioned conduct and after a complete

case challenging the charges, facts and handling had been presented and decided . Grievant has

been prejudiced by this delay and suffered the stress of repeating the process because of the

Service's impropriety . A protest based on double-jeopardy is appropriate .

Under the circumstances of this case I find the Britton decision to be "final and binding"

so as to bar the subject removal, which must be found to be without just cause . If I did review the

second removal de noveau, there are serious questions raised by the Union as to whether the

Service action in handling the second removal violated the requirements in Article 16 . Deciding

those significant complaints is unnecessary, because of the findings that the second removal

violated both 15.6 and 16.1 of the Labor Agreement

AWARD

The grievance is sustained .The Service is directed to rescind the subject removal and reinstate Grievant to active

employment as his physical condition permits, restore his continuous service and make himwhole for all lost wages and benefits . The Arbitrator retains jurisdiction solely in respect toimplementation of this Award until September 30, 1996 to receive any written issue of meaning,compliance or satisfaction about this Award from either Party and thereafter render anappropriate decision .

Nicicolas Duda Jr., Arbitrator//