was Frank A. Barratini, Labor Relations Todd D. Cochran Supervisor of Mails and Delivery Fairport Georgia Milgate Postmaster, LeRoy, New York

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1 In the matter of e* e7s~ia yl United States Postal Service Fairport, New York Case # E4N -2W-D 3915 and Robert Rupp / Indefinite Suspension National Association of Letter Carriers Branch A hearing on the above matter was held in Rochester, New York, on December 4, Norman C. LeFrois, President of Local 210, represented the Union. Advocate for the Postal Service was Frank A. Barratini, Labor Relations Representative. Others in attencance at the hearing were For the Postal Service Todd D. Cochran Supervisor of Mails and Delivery Fairport Georgia Milgate Postmaster, LeRoy, New York For the Union Robert Rupp Carrier/Grievant - Mary Rupp Grievant ' s wife (observer) Witnesses were sworn and questioned. Documents were submitted in evidence. Briefs by both parties were filed on or before December 18, The Issue Was there just cause in accordance with Article 16.6 of the National Agreement, for the issuance to the Grievant of the Notice of Indefinite Suspension dated May 10, 1985? If not, what is the appropriate remedy? The Notice of Indefinite Suspension was issued to Mr. Rupp in accordance with Article 16 section 6 Indefinite Suspension-Crime Situation. Section 6 reads in part A. The Employer may indefinitely suspend an employee in those cases where the Employer has reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed.

2 2 B. The just cause for an indefinite suspension is grievable. The arbitrator shall have the authority to reinstate and make the employee whole for the entire period of the indefinite suspension. The essence of this case is what constitutes just cause for an indefinite suspension in a crime situation and what are the employer's obligations in establishing just cause and in assuring the employee due process in the determination of just cause? The Facts The Grievant, Robert Rupp, is a carrier assigned to the Fairport post office. He had been a carrier for 62 years with a clean disciplinary record. on April 11, 1985, Mr. Rupp was arrested by the Wayne County Sheriff and charged with Sodomy 2nd degree with his daughter. Mr. Rupp was on vacation with his family at the time of his arrest. His wife called the post office on April 14 to request 2 additional days of annual leave. This was granted. Mr. Rupp was in jail at the time. On April 18, 1985, Rupp returned to work. Having learned that Rupp was in jail, Postmaster Milgate requested the Inspection Department to investigate. A report was received on April 19, confirming the arrest and incarceration of Rupp on charges of 2nd degree Sodomy. At that point the Postmaster and Todd Cochran, Supervisor of Mails and Delivery at Fairport, decided to hold up action on Rupp pending receipt of the official report on Rupp's arrest. The report was received some ten days later giving details leading to the arrest. The arrest report revealed that Mr. Rupp had had oral sex with his 13 year old daughter for 3 years and had intercourse on one occasion. She reported this to a neighbor as the result of a fight with her father. The police were notified and the full story came out during an interrogation of the father and daughter. There followed discussions among postal service supervisors and a

3 3 Notice of Indefinite Suspension was issued to Robert Rupp on May 10, He had carried on his regular duties from the date of his return to work, April 18 to the date of his suspension May 10. During this period Ms. Milgate had numerous conversations with Rupp but at no time did she seek a full explanation of the circumstances surrounding Rupp's behavior and the criminal charge. At no time did he deny the charge. The Postal Service Position Ms. Milgate testified that, when she learned that Mr. Rupp had been arrested and was in jail, she requested an investigation by the Inspection Service. The preliminary report of the Inspectors was very brief and uninformative. She requested a copy of the police report. This was not received until two weeks later because of the reluctance of the sheriff's office to release the report. When Mr. Rupp returned to work she interviewed Mr. Rupp. He admitted to having been arrested and placed in jail. He explained his arrest as a family dispute. Once the police report had been received, Ms. Milgate discussed the situation with the Employee and Labor Relations staff at the Rochester MSC. Based on the police report and conversation with Mr. Rupp, she had reasonable cause to believe he was guilty of a crime for which a sentence of imprisonment could be imposed. On that basis, in line with Article 16.6, she issued the Notice of Indefinite Suspension. The Union Position The Union advances several arguments in support of its position that the Postmaster did not have reasonable cause to believe Mr. Rupp was guilty of a crime for which a sentence of imprisonment could be imposed. All of these arguments are * subordinate to the Union principal contention that Mr. Rupp was not accorded due process when the decision was made to place him on indefinite suspension.

4 4 The officers of the Postal Service made no independent investigation to determine if there was reasonable cause to believe Rupp guilty. Ms. Milgate requested the Inspection Service to investigate Mr. Rupp's arrest. They provided the Postmaster with only the briefest statement of his arrest and the charge. It was two weeks later that a copy of the detailed statement of the reasons for the arrest was furnished the Postal authorities. Ms. Milgate did not conduct a meaningful interview with Mr. Rupp. Although she spoke to him many times she did not ask serious questions about the cause of his arrest, his family situation or the possible disposition of his case. Mr. Cochran admitted on cross examination that he did not conduct an investigation of the circumstances of Mr. Rupp's arrest, but he was the supervisor who made the recommendation for the indefinite suspension. The indefinite suspension was issued solely on the basis of a very uninformative police record. Ms. Milgate assumed that the charges were sufficient to justify a sentence of imprisonment. She did not take the trouble to find out that, following Mr. Rupp 's arrest, he and his family were undergoing counselling and that the sentence imposed, if any, would be largely determined by the judge's appraisal of the results of the counselling, the degree of family support which Rupp would receive and whether imprisonment would be appropriate in Rupp's case. Ms. Milgate reached a decision without knowing any of the details of Mr. Rupp's status before the court. There had been no publicity whatever about Mr. Rupp's arrest and the charges against him. There was no evidence that Mr. Rupp's behavior would have any impact on his work as a letter carrier. Certainly the crime with which Rupp was charged had no impact upon his work for the post office and no impact upon the public image of the post office. Mr. Rupp was arrested during his scheduled vacation and out of the County. Although there was no public reference to Mr. Rupp's actions, neither did he try to cover up the fact that he had been involved in a revolting kind of action.

5 5 The Union argues that there were other options open to the Postal Service other than indefinite suspension because of a crime situation. Specifically, Mr. Rupp could have been placed on an off-duty status (without pay as is permitted in Article 16 Section 7). The same purpose would have been accomplished without the necessity of determining whether a crime had been committed and imprisonment likely. But the Postal Service chose to place Mr. Rupp on indefinite suspension, a desciplinary penalty, on the flimsiest of evidence and without proper investigation to establish just cause. In conclusion, the Union offers two arbitration cases supporting the Union's position regarding the importance of according an accused person due process before the Postal Service inflicts a serious disciplinary penalty. The cases are Case # W4N-5D-D 2208 Arbitrator Gentile and Case # NC-W-15, 975-D, Arbitrator Rentfro. The former deals specifically with the application of Indefinite Suspension-Crime Situation to a Carrier who was arrested as a fugitive from justice. The arbitrator sustains the importance of the Postal Service conducting an independent investigation before placing an employee on indefinite suspension. In the second case, Arbitrator Rentfro emphasizes the importance of an independent Postal Service investigation since it was later revealed that the cause of the employee engaging in lewd and lacivious conduct with a child was related to a serious case of alcoholism. The Union concludes that the Postal Service in this case failed to make any investigation, but rather, simply on the basis of a sketchy police report, concluded that Mr. Rupp was guilty of a crime for which a penalty of imprisonment was likely, therefore, he should be placed on indefinite suspension. Award and Opinion The issue in this arbitration, that is, just cause for placing Robert Rupp on indefinite suspension, poses two problems of intense interest to the general public and the Postal Service. The first problem is the nature of the

6 6 crime of sexual abuse of children within the family, the treatment of this crime by the public and the courts, and the implications for action by an employer. The second, the establishment of just cause for discipline through independent investigation, in short, the application of due process to the Postal Service disciplinary action. With respect to the nature of the crime and its impact, the sexual abuse of children has been the subject of an unusual amount of publicity. The public revulsion to incest, particularly where children are involved, has been clearly demonstrated and the public has become alarmed by the proportions of the crime. Occasionally perpetrators of sexual abuse on their children are quiet, unassuming individuals, as Robert Rudd appears to be, who have appeared to be law abiding respectable, self-supporting individuals. Those who know such individuals react- "I can't believe it"...."row could he"...."there must be something wrong". The dilemma of the courts when attempting to be just in such cases is whether the crime should be treated as throughout history - with imprisonment and public castigation or in a more humane fashion by counselling or other therapy of the individual and family with as little interruption of normal routine as possible. When the latter appraoch is used, there is a conscious attempt to prevent publicity. The employer faces the same dilemma as the courts. The sexual abuse of one's child is not a crime of public violence against persons or property. There is no damage to the image or the position of trust of the Postal Service. There is no threat to fellow workers or, in this case, to patrons. But it is a crime, and in the court of some judges, will result in a prison sentence. It must be conceded that each case is unique and that fact does u :wj support thencontention that the decision to place an employee on indefinite suspension because of a crime situation must be carefully weighed in the light

7 7 of all the facts that can be assembled. The pro forma decision that, because there has been a crime committed, Mr. Rupp must be indefinitely suspended until the case is resolved was not an appropriate action in this case. The second problem is how much independent investigation by the Postal Service is possible and necessary to establish just cause for disciplinary action. The Union argues that extensive inquiry into the circumstances of Mr. Rupp's arrest was necessary for the Postal Service to establish just cause for indefinitely suspending Mr. Rupp. It is obvious from the testimony that neither Ms. Milgate, Mr. Cochran nor the Inspectors made a careful investigation of Mr. Rupp's actions, family situation, or court attitude toward Mr. Rupp. The Union concludes that the Postal Service did not have the basis for a just cause for suspension. There is no doubt that the two cases cited by the Union in support of its position that independent investigation is essential to establishing just cause, are impressive examples of situations in which the absence of investigation led to an unjust decision. In one case, the Gentile award (Case # W4N-5D-D 208) the Grievant was taken into custody and charged with being a fugitive from justice. When the circumstances became known, it was obvious that there was little reason to suspend the Grievant. He had left Florida to accept employment, he had no time to arrange his financial affairs before leaving, he had made arrangements to repay his debts. An interview with the Grievant would have provided facts upon which much more appropriate disciplinary action by the Post Office, if any, could have been devised. The second case, involving a removal for a sexual offense, Case # NC-W-15, 975-D, Arbitrator Rentfro, similarly points out that the discipline invoked was inappropriate given facts which could easily have been obtained by the Postal Service had it made an independent investigation. The Grievant had made sexual advances to his seven year old son. It was determined later that the Grievant suffered from

8 8 severe alcoholism. The judge and probation officers provided information about the Grievant at the hearing that would have been available to the Postal authorities prior to their taking disciplinary action had some personal investigation been made. As the arbitrator notes, available to the Postmaster had he requested it, but information would have been made no attempt was made to clarify any of the background facts or probable impact of the Grievant' s actions. The arbitrator therefore concluded that the Grievant had not been accorded due process when the decision to remove him was made by the Postal Service. The instant case is not quite so clear-cut as the two cases cited by the Union. An investigation might or might not have revealed facts which would lead to disposition of the case other than indefinite suspension. The crucial factor is, however, that no such investigation was made. Not even an in depth interview with Mr. Rupp. I can understand the reluctance of the Postmaster, Ms. Milgate, to question Mr. Rupp about such a personal matter, but Mr. Cochran should not have had any such inhibitions. The evidence indicates that no one in the Postal Service conducted any inquiry with Mr. Rupp or the public authorities regarding the background of Mr. Rupp's arrest or the probable disposition of his case. Certainly there was no systematic attempt to assess the impact of Mr. Rupp's arrest and possible conviction on the Postal Service or its employees. The evidence does show that Mr. Rupp was entitled to a much more intensive review of the facts of his situation the decision was made to indefinitely suspend. than was accorded to him before A note of caution needs to be sounded with respect to independent investigation of criminal cases. The District Attorney and police tend to discourage independent investigations, and with respect to cases demanding their own careful investigation, outside investigators can only be a hindrance. While this attitude of public authorities might prevent competitive investigations, with good cause, they do not prevent the Postal Service from making sure that

9 9 the employee involved is interviewed in depth. Due process in determining just cause demands that the Postal Service make reasonable efforts to get the facts and to understand the impact of any criminal situation involving a postal employee before disciplinary action is taken. That was not done in the case before me. Finally, discipline should not be invoked in cases where a crime is alleged to have occurred off Post Office premises and when the alleged perpetrator was off duty, without a careful appraisal of the impact upon the Postal Service operations and public image, on patrons or on fellow employees. In this particular case, the arrest was made in a different county while the employee. was on vacation ; there was no publicity ; there was no known reaction from patrons ; the evidence does not show any adverse reaction by employees. Since the crime did not involve any question of the safety of Postal Service property or property entrusted to it, one might ask, what purpose was served by the indefinite suspension of Robert Rupp? For the above reasons, therefore, I conclude that the indefinite suspension of Robert Rupp was not for just cause. He should be paid for the time lost as a consequence of this suspension. The period of back pay must, of course, be determined by any action with respect to the final decision by the Postal Service concerning Mr. Rupp ' s continued employment. Award There was not just cause for the indefinite suspension of Robert Rupp dated May 10, He is entitled to be paid for the period of the suspension with a terminal point determined by the final disposition of his status with the Postal Service. Respectfully submitted, J hn W. McConnell Arbitrator January 10, 1986