0 REGULAR REGIONAL PANEL

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1 0 REGULAR REGIONAL PANEL In the Matter of the Arbitration ) between ) Case #H9ON-4H-D (P. Woolery) UNITED STATES POSTAL SERVICE ) St. Petersburg, Florida ) NALC # Employer ) and ) BEFORE : Seymour X Alsher NATIONAL ASSOCIATION OF LETTER ) CARRIERS, AFL-CIO ) Union ) LOCATION OF HEARING : Main Post Office, St. Petersburg, Florida DATE OF HEARING : May 4, 1995 APPEARANCES : For the Employer : Richard Kolenda For the Union : 0. D. Elliott NATURE OF CASE The Union challenges the seven day disciplinary suspension of Letter Carrier Phillip Woolery, the Grievant, on merits and on procedure. The union claims that Management ' s designee, fn-violation of the National Agreement ( NA), failed to properly concur in the proposed suspension. The Union deems the concurrence question as a threshold matter. Evidence was adduced on merits and on the concurrence question. The parties agree : should the Award hold that proper concurrence was not accomplished, as required by the NA, the Decision and Award will not treat the question of merits. (Some facts and background relating to merits are intertwined with the concurrence question. Accordingly, where necessary, in treating the threshold question, I shall allude to facts that also bear also on merits.) BACKGROUND Grievant ' s Service seniority is April, He has been Matthe\h '.MALL r--- Nationv i '+.. :. :,' s Agent MAY 15 it I 711 ; L LJ u~ Region

2 2 assigned to the Open Air Station for about six years. He is one of approximately 30 carriers. His immediate supervisor was, at all times material herein, Phyllis Simmons. Arthur Pelletier, Manager, Customer service is management's representative charged with the responsibility to concur with a proposed suspension. Grievant was on the Overtime Desired List (OTDL). The Local Memorandum of Understanding (LMOU) provides, in part, tnat carriers on the OTDL may not refuse an overtime assignment "but may be excused in which case an opportunity is afforded." Grievant is not the subject of any active grievance. He has a satisfactory work history. Grievant testifies that he had not been issued a letter of warning or a suspension at any time during his tenure. ISSUE Employer - Did Management have just cause to issue to Grievant a seven day notice of suspension dated September 21, 1994 for improper conduct. If not, what is the appropriate remedy. Union - Apart from the concurrence question : Was seven day suspension issued to Grievant for just cause. If so, what is the appropriate remedy. [All dates are 1994 unless noted otherwise.] FACTS Pertinent NA Provision ARTICLE 16 DISCIPLINE PROCEDURE Section 8. Review of Discipline In no case may a supervisor impose suspension or discharge upon an employee unless the proposed disciplinary action by the supervisor has first been reviewed and concurred in by the installation head or designee.

3 3 The incident which gives rise to the suspension occurred on Saturday, September 10. The Notice ' of Suspension ( NS), signed by Simmons, is dated September 21. Its text, in relevant part : On September 10...at approximately 1 :50 pm, I asked when you were going to deliver the piece you had been assigned. You stated you weren ' t - you had an appointment and were leaving. I advised that you had no approved leave and were needed to deliver the piece. I instructed you to take the piece to the street. You refused and I said, " Let me repeat. My instruction to you is, take the piece to the street." You responded, " I'm not working after 3 :00 pm. I'm not listening to you." As a Postal employee you are well aware of your responsibility to follow the instructions of your supervisor. Your actions... will not be tolerated. Simmons conducted an investigative interview (INI) with Grievant on September 12. According to the "transcript," Woolery referred to a 3 :00 pm " appointment " that he would be unable to make if he worked beyond 2 :00 pm. (Woolery testifies that the Saturday appointment had been changed from the previous Thursday.) Grievance Participants at Step 1 were Steward Patti Babcock for the Union and Simmons representing Management. There is no dispute that Babcock raised the question of concurrence. The Step 2 Appeal continues the improper concurrence charge. The Appeal also charges that Management failed to consider mitigating circumstances. The Union' s Additions and Corrections and its Step 3 Appeal reaffirms its no concurrence charge. Management did not, either in its written Step 2 or Step 3 Denial, respond to the Union' s charge of failure to comply with Art.16.8.

4 4 At the St. Petersburg installation supervisors proposing disciplinary action have utilized a form designated as "Request for Disciplinary Action" identified as Form 278E. Form 278E provides space for the supervisor to explain the offense ( s) upon which the proposed discipline is based including the employee ' s explanation. Past practice shows that if there is concurrence with the proposed discipline, the concurring Management representative initials or signs his/her name on the 278E. The following is not intended as an exhaustive, complete account of the Simmons-Woolery exchange of September 10. Woolery and Simmons agree on certain facts. They agree that Woolery had been assigned to deliver a piece on this date that would necessitate overtime (OT). Woolery was aware of his obligation to deliver the piece even if it meant OT. Woolery had not been granted approved leave for September 10. According to Woolery, he had a private counselling appointment that was scheduled initially for Thursday in Tampa. The date was changed from Thursday to Saturday. He neglected to inform Simmons of the date change. He returned to the Station about 1 :40 pm after completion of his regular route. He testifies that when he left for street delivery, he had intended to deliver the piece. Simmons approached him upon his return while he was engaged in mark-ups. Having remembered that his appointment had been rescheduled for 3 :00 pm that afternoon, he told Simmons that he had to leave no later then 2 :00 pm in order meet his appointment. A discussion over delivery of the piece escalated into a heated exchange. Woolery picked up the piece and started to leave insisting, however, that he could not work beyond 2 :00 pm. Woolery admits he told Simmons, "I'm not listening to you." He explains this was his way of reaffirming his intention not to work beyond 2 :00 pm, It was not an act of defiance of a supervisor. When he informed Simmons of his counselling session, Simmons told him he'd need a note. He said that would not be a problem.

5 5 He obtained the note on the 10th and submitted it to Simmons on his next work day--either Monday, September 12 or Tuesday, the 13th. The note, dated September 10, confirms the 3 :00 pm Tampa appointment. Simmons ' s account of her September 10 encounter with Woolery differs in one major respect. She denies that she requested that Woolery document his 3 :00 pm appointment. She had no reason to do so in that Woolery did not mention that he was leaving at 2 :00 pm in order for him to make the 3 :00 Tampa appointment. She acknowledges, however, that Woolery did furnish the note on the following Monday or Tuesday. Simmons testifies that she furnished Form 278E including the following supporting documents : ( 1) written statement from Clerk who overheard Simmons ' s order to Woolery, and (2 ) the INI. She left the entire package in Pelletier's office. She had a brief discussion with him ; he agreed with her proposal. She did not see Pelletier initial or sign the 278E. Simmons testifies she is certain of Pelletier ' s concurrence. However, she did not see Pelletier indicate, in writing, his concurrence. Pelletier, who normally is charged with the responsibility to review and concur, ( about ten 278E ' s a month ) testifies that Simmons left the Form 278E package with him. He did not complete a review of the proposed discipline before Simmons left his office on September 19. He reviewed it later and concurred. He neither initialed nor signed Form 278E explaining that his failure to do so was an "oversight." When later advised that there was no written concurrence as required by the NA, he prepared an undated memorandum "To File." Its full text : A verbal concurrence was given to the Letter of Warning issued to Philip Woolery on September 19,1994. This was handed to Babcock. Pelletier admits to the obvious errors which he attributes to oversignts. First error : the discipline was not a letter of warning ; second error : discipline was issued on September 21, not September 19.

6 6 Babcock testifies that when she asked Simmons at Step 1 about concurrence, Simmons told her that Pelletier had concurred. When Babcock asked about the written, Simmons told her that Babcock probably received the "wrong 278E." Neither party submitted the other or "wrong" Form 278E. It is unclear whether more than one Form 278E ' s had been prepared. There is no evidence that Babcock or the Union was furnished the second or missing Form 278E. SUMMARIZED CONTENTIONS, ARGUMENTS Note : Limited to the procedural question. Union 1. Determination depends largely on credibility. 2. Failure of concurrence is a fatal procedural flaw. 3. The sole written evidence of Pelletier ' s concurrence is his undated file memorandum which, according to Pelletier, contains two "oversights." That memorandum is not sufficient to establish proof of Pelletier ' s concurrence. 4. Simmons ' s testimony fails to establish that concurrence was accomplished. When she left the Form 278E package with Pelletier while in his office, Pelletier had not completed his review of the package., There was, therefore, no concurrence on the occassion of Simmons ' s meeting with Pelletier. Employer 1. Although Pelletier's file memorandum was sloppilu drafted (incorrect date, incorrect disciplinary action ), the memorandum represents Management ' s written confirmation of Pelletier's conccurrence with the Simmons recommendation. 2. There is no evidence that that Grievant ' s due process rights were adversely affected by Management's failure to furnish written concurrence. 3. Art.16.8 requires concurrence. Nothing in the NA requires that the concurrence be in writing. 4. The fact is that Management did concur.

7 7 DISCUSSION - OPINION - FINDINGS The case does not turn on Management's failure to provide written concurrence. The absence of written concurrence, however, is significant in that Management's unexplained deviation from its established practice (written concurrence on Form 278E) creates uncertainty concerning Pelletier's self serving assertion that he concurred. The fatal flaw in the Employer's attempt to prove concurrence is the fact that Management has failed to show that Pelletier reviewed the material facts that bear on Simmons ' s recommendation. Concurrence is not or at least should not be a ministerial, mechanical act on the part of the reviewing official. if there is no review, there can, logically, be no concurrence. The mere fact that the higher management official asserts that he/she concurred, without independent evidence of review and concurrence, does not, in my view, meet the Art.16.8 test. The Union cites two Awards that treat the essence of review : Cases Nos. S4N-3W-D , 1/27/86 (LeWinter) ; S4N-3D-D 26405, 11/24/ 86, (Carson. Excerpts follow : The LeWinter Award : The requirement to "review" does not mean that at each level of supervision a separate investigation of all the facts must be undertaken. The requirement is for an upper level supervisor to check the records, satisfy himself there is sufficient cause in the record for discipline... Signature without that affirmative action [review] would have no meaning. The Carson Award cites the LeWinter Award adding, It is only necessary that the concurring official understand the circumstances involving the situation and that he agree with the degree of discipline... Simmons's Form 278E including the supporting documents failed to treat a matter that is clearly crucial. The package furnished to Pelletier for his review did not include Grievant's documentation that supports his claim that he had a 3 :00 pm Saturday appointment. That appointment may or may not rise to the level of a mitigating circumstance sufficient to

8 8 justify Grievant ' s reaction to Simmons ' s insistence that Grievant work beyond 2 :00 pm. I find, however, that the reviewing / concurring official should have been provided with the data so that he could have had the choice of accepting or rejecting Woolery's explanation. Clearly, Pelletier was not provided with available records so that he could understand the circumstances bearing on Woolery ' s need to leave work early on that Saturday. The clear fact is that, according to Woolery, his situation created mitigating circumstances. But Pelletier did not review them. He did not review or even see the note documenting Grievant's inability to work beyond 2 :00 pm that Saturday. I find that Pelletier was never presented with pivotal evidence. The transcript of the INI did not contain it. The fact that neither Pelletier nor Simmons conspired or was malevolenty motivated does not justify witholding vital information from the management official who is the person charged with the final decision on discipline. I find that even if Pelletier orally "concurred " with the Simmons recommendation, he did not first review the proposed disciplinary action as required by Art The fact that Pelletier is sincere in his assertion that he did, in fact, concur, does not establish a finding of compliance with Art Finally, I reject Management ' s argument that there is no evidence that the Union's or Grievant ' s rights were adversely affected. The fact is that failure to accord an employee rights guaranteed in Art-16.8 constitutes a per se deprivation of an employee ' s rights under the NA. In light of my finding, I find it not necessary to further treat the question of the "missing " Form 278E. I do note, however, that Management ' s shifting explanation concerning absence of proof of concurrence, creates a degree of skepticism that does not allow a finding that Pelletier properly concurred with the suspension recommendation. Based on the above, I find and conclude that Management, in violation of Art.16.8, failed to review and concur with Grievant's proposed suspension.

9 9 AWARD The grievance is sustained. The Employer shall set aside Grievant ' s suspension. The records shall be corrected accordingly. Grievant shall be made whole for all time lost as a result of his suspension. DATE : May 12, 1995 enour X Alsher Ar itrator