C IS-9 C - National Association of Letter Carriers

.
C
IS-9
IN THE MATTER OF THE ARBITRATION BETWEEN
UNITED STATES POSTAL SERVICE )
CASE NO .
CTS NO .
H94N-4H-D-96060209
029889
AND
GRIEVANT :
P . E . Dabbs
PLACE :
DATE :
Marietta, GA
September 17, 1996
)
NATIONAL ASSOCIATION OF )
LETTER CARRIERS
)
BEFORE :
J . REESE JOHNSTON, JR ., ARBITRATOR
APPEARANCES : FOR THE POSTAL SERVICE :
Eloise Lance, Labor Relations Specialist
United States Postal Service
3900 Crown Road, S .W .
Room 255
Atlanta, GA 30304-9351
FOR THE NALC :
Greg Dixon, President
Local Business Agent/Advocate, Region 9
Branch 1119-NALC
734 Roswell Street
Marietta, GA 30060
BRIEFS RECEIVED : October 5, 1996
AWARD : The Grievance of P .E . Dabbs is sustained and the Postal Service is directed
to return her to the positions of employment she occupied prior to her
removal . Including , all back pay and other benefits, including interest on
the amount of back pay that she would be due . The back pay is to be
calculated on the basis of 40 hours a week for each week that she has been
off, plus overtime at the rate of time and one-half for all overtime hours
that the employee who replaced Ms . Dabbs on her route worked during the
period of time she was off the payroll . If there is a dispute between the
Grievant and her Union and the Postal Service as to the amount of back pay
due to Ms . Dabbs, I will retain jurisdiction of this matter for thirty (30)
days and if either party notifies me in writing with copy to the other parties
that the parties have not mutually agreed on the correct amount of back
pay, I will set the matter of back pay down for further hearing .
DATE OF AWARD : October, 1996
e JQKpkton, Jr., Ar6 'ator
Two Chase Corporate Driv
Suite 120
Birmingham , AL 35244-1015
C
BACKGROUND
The Grievant, P .E . Dabbs received a Notice of Removal dated March 11, 1996 . This
Notice of Removal read as follows :
"DATE : MARCH 11, 1996
OUR REF : LG/ba
SUBJECT : NOTICE OF REMOVAL
TO :
SSN
P.E . DABBS
416 -62-6709
MARIETTA GA 30067-9998
You are hereby notified that you will be removed from the
Postal Service effective at the close of business on April 12,
1996.
The reason (s) for this removal action are as follows :
Charge 1 : YOU ARE CHARGED WITH HAVING AN AT
FAULT PREVENTABLE FIXED OBJECT .
VEHICLE ACCIDENT.
Specifically , on December 12, 1995 after receiving a call from
postal customer , Marcia Brice of Ares Management reporting
an accident , postal management began an investigation . The
investigation revealed that you were the postal carrier for
December 12, 1995 for the postal customer located at 1090
Northchase Pkwy . The investigation estimated the damage
amount to be approximately $785 .00 to the landscaping at 1090
Northchase Pkwy . The postal vehicle appeared to have no
damage . Upon your return to work on December 14, 1995 you
were interviewed about the accident and why you failed to
report it . You stated you did not feel you had an accident .
You are charged with having an at fault preventable fixed
object vehicle accident .
Charge 2 : YOU ARE CHARGED WITH FAILURE TO
REPORT AN AT FAULT PREVENTABLE
FIXED OBJECT. VEHICLE ACCIDENT .
On December 12, 1995, at approximately 1 :20p.m.,
management received a call from postal customer , Marcia
Brice of Ares Management group reporting an accident that
had taken place at approximately 12:30 p . m . Ms . Brice was
contacted by Executone, 1090 Northchase Pkwy., concerning
some damage that was caused by a postal vehicle to the
landscaping at the above address . Upon returning from your
delivery route on December 12, 1995 you ended your tour of
duty and failed to report an at fault preventable fixed object,
vehicle accident that you were involved in and you are charged
accordingly .
"If this action is overturned on appeal , back pay will be
allowed unless otherwise specified in the appropriate award or
decision , ONLY IF YOU HAVE MADE REASONABLE
EFFORTS TO OBTAIN EMPLOYMENT DURING THE
RELEVANT NON-WORK PERIOD .
The extent of
documentation necessary to support your back pay claim is
explained in the Employee and Labor Relations Manual,
Section 436 ." (copy attached) .
You have the right to file a grievance under the grievancearbitration procedure set forth in Article 15, Section of the
National Agreement within fourteen ( 14) days of receipt of this
letter.
Loretta Gomez
Manager, Customer Services
Marietta GA 30067-9998
cc : disc, nalc, opf, ba, gmc, lbr rlt
RECEIVED BY : Refused to sien
DELIVERED BY : Loretta Gomez
CONCURRED BY : Garth M . Cain
3
ATE : 3-11-96
DATE :3-11-96
DATE :3-8-96"
This was the second Notice of Removal received by the Grievant, Ms . Dabbs, having received
a Notice of Removal dated January 4, 1996 which earlier Notice of Removal grew out the same
incident as the incident in the March 11, 1996 Notice of Removal . The Second Step designee
for the Postal Service offered to resolve this case at that step for a thirty (30) day suspension to
be served by the twenty-one (21) days that the Grievant had been off the payroll . The Union
refused to accept this settlement, the second step designee then wrote a letter dated February 28,
1996 addressed to Greg Dixon, President of Branch 11 19-NALC, the letter reads as follows :
"DATE : February 29, 1996
OUR REF : BKH:inb
SUBJECT : Step 2 Grievance Decision
TO : GREG DIXON PRESIDENT
BRANCH 1119 NALC
734 ROSWELL STREET
MARIETTA GA 30060-2135
I am responding to USPS Grievance #9632 DN (NALC #D-9601-06 -067-JO- 1) dated January 30, 1996 , and received in my
office on January 30, 1996 . The Step 2 Rearing was held on
February 7, 1996 . The time limit for processing Step 2 was
extended by mutual agreement .
The grievant, Phyllis Dabbs, SSN 416-62-6709, Full Time
Regular Letter Carrier, Gresham Road, Marietta, GA 30067,
is alleging management has violated Article 16, of the National
Agreement, when on January 6, 1996, the grievant was issued
a Notice of Removal for having an At-Fault Preventable Fixed
Object Vehicle Accident, and failing to report it to
management .
The union contends management acted without just cause and
without following proper discipline procedures . Management
by passed official discussion , LOW Suspension , and went
straight to a Notice of Removal . Nothing happened which
properly gives rise to discipline . Management ignored the
statement of witnesses and based discipline on a billing from a
landscaping company .
4
Corrective Action Requested : Rescind the discipline and make
the grievant whole .
The matters presented at Step 2 , as well as all applicable
contractual provisions, have been reviewed and given careful
consideration .
After consideration of the aforementioned information , it is my
decision to withdraw the Notice of Removal for administrative
review .
B . Keith Harmon
Step 2 Designee
Manager, Customer Service Support
Marietta, GA 30060-9998"
As can be seen by the above letter the Notice of Removal dated January 4, 1996, was
withdrawn for administrative review by the Postal Service . It was the issuance of the March 11,
1996, Notice of Removal that was before this Arbitrator on September 17, 1996 . In response
to the Second Notice of Removal the Union filed its contentions which were as follows :
"Union Contentions
3-20-96
JAMES OTOS
Step 1
D-96-03-11-067-JO-1
Phyllis Dabbs-Letter of Removal
1 . The Letter of Removal for Phyllis Dabbs was issued on
3-11-96 which was almost four months after the incident in
question , which occurred on 12 - 12-96 and the issuing of this
discipline is certainly untimely C-01261 and C-1504 .
2 . Even if this were untrue, the Letter of Removal should
be denied because the discipline was not only ordered, but
issued by higher management , the Station Manager, Loretta
Gomez, and not by her immediate supervisor . The agreement
requires discipline be proposed by lower level management and
concurred in by higher -level authority . The requirement was
omitted in this instance . C-04679
5
3 . This is the second discipline for this incident . On 1-4-96
a Letter of Removal was issued for the same incident, and a
second Letter of Removal was issued on 3-11 -96 . At the end of
February Management representative , Keith Harmon, told
Greg Dixon , the Union Step 2 representative that Management
was going to reduce the first letter to a thirty day suspension,
after the Grievant had served 21 days under the first Letter of
Removal . The Grievant was contacted and told to return to
work , and after one week , Management issued a second letter
of Removal for the same incident which occurred on 12 - 12-96 .
It is unreasonable to allow management withdraw discipline
after reviewing the defense to that discipline and reissuing
discipline on the same incident in a effort to overcome the
defense . It is obvious in this case that their investigation in the
first instance was inadequate , and their discipline was flawed .
Management caused great distress to the Grievant, who
naturally thought that the Removal was withdrawn in lieu of
suspension , as the Union was told , and should not have to
defend herself twice for the same incident .
By returning the grievant to work after the original removal
implicitly mitigated the penalty to that suspension of 21 days .
Thus, the imposition of the second discharge action one week
later, after the grievant had returned to work , constituted a
subsequent increase of or addition to the penalty for the same
offense, an action which is violative of the due process rights of
the grievant . Having implicitly set the penalty for the
grievant 's offense , the Service may not subsequently add to
that penalty , thus subjecting the grievant to "double jeopardy" .
C-00095
4 . Even if that were untrue, the discipline should be denied
because the charge was defective because the facts in were not
properly gathered and the investigation by Management was
faulty . When the decision is to impose a penalty as severe as
discharge , care must be taken that all the relevant facts and
evidence are considered .
Discharge without a complete
investigation falls short of minimum standards .
There were three witnesses who saw the incident and conferred
with the grievant after the incident , and management did not
interview these witnesses before issuing the discipline, nor did
they offer as evidence any statements by witnesses . The
6
witnesses were interviewed by the Union and concurred with
the grievant ' s view of the incident . No harm, no foul .
Management accepted two different bills from Ares
Management for damage supposedly done to eight bushes and
yet the steward only slight damage to four buses , and these
bushes were priced at Home Depot at $ 10.00 each . Though the
Service paid over $ 500 in damages, less then $ 100 of damages
were actually done, but management failed to investigate the
damage themselves, but instead blindly accepted a estimate
which could be and was self serving on the part of the
management company involved, and in fact , the charges were
reviewed and lowered from more then $ 800 .00 when the Union
raised this issue . Management did not wish to thoroughly
investigate this item because they did not want to put their
decision , already made, to remove the employee .
The reasons why due process requires that an investigation be
made into all the relevant facts and circumstances , including
the employee ' s explanation , before disciplinary action are
several . A thorough investigation reduces the likelihood of
impulsive and arbitrary decisions by management , and permits
deliberate , informed judgement to prevail . The same evidence
presented prior to decision may have more important effect
than when offered at the grievance level . This is so simply
because it is human nature to stick to and defend a decision
already made . This reluctance to reconsider , even in the light
of new information, is more pronounced in labor-management
relations because the employer has an additional institutional
interest to 'stand firm' and defend the authority of the
supervisory personnel who made the decision to discharge . C01030 .
5 . Even if this were untrue, the discipline should be denied
because management refused to disclose information to the
Union . At the time of the Step 1 meeting, and decision,
management had given the Union no information or evidence
pertaining to this case . Despite repeated requests by the
steward , management was not forthcoming with their
investigation , their correspondence with the other parties
involved , any interviews or any other evidence . Management
has a the burden to prove that it had 'just cause ', and to give
the grievant and opportunity to answer the charges and dispute
the evidence.
A separate grievance, Refusal to provide
7
Information, C-96-03-20-067-JO-1, has been filed by the Union .
C-00308, C-00090, C-04273, C-06658 .
6 . Even if this were untrue, the discipline should be
removed because the Service failed to charge the Grievant with
a dischargeable offense . The reason given has not been
considered a removable offense in the past in Marietta, GA,
but the Service wished to remove the Grievant because of her
age . She is not as fast as her Officer Manager, Loretta
Gomez, would like her to be . To remove an employee after
many years of good service by concocting a bastardized form
of infraction is not allowed . C-01311
7 . Even if this were untrue, this discipline should not
sustained because even if the Grievant may have acted
charged, she was provoked into this action by the witnesses
the scene of the incident, who told her that there was
damage and she could leave . C-05321
be
as
at
no
8. Even if this were not true, the discipline should not be
sustained because the Grievant was disparately treated . The
Union can cite similar incidence in Marietta, Ga . where the
employees were given at the most a seven day suspension, and
at the least no discipline what so ever . C-04401
9 . Even if all that is not true, the discipline should be
removed because management failed to follow the principles of
progressive discipline . The grievant has no previous discipline
for any action such as this . It has been held many times by
other arbitrators that, for discipline to be corrective , it must be
progressive . This is a first occurrence , and since discipline
should be corrective rather than punitive , which is the basic
principle of discipline in the National Agreement , and since the
incident was unintentional , and since it can be reasonably
assumed that there will be no similar incident such as this in
the future , then the discipline should be removed . C-00557, C01043 , C-00060 , C-00584 , C-01974, C-05902, C-06299, C06894 ."
8
It was the testimony of the Grievant ' s immediate Supervisor that he investigated the
incident which occurred on December 12, 1995 and made a report to the Station Manager of
what he had found in his investigation .
He further testified that he did not suggest or
recommend that the Grievant be given any discipline , but was instructed by the Station Manager
to request removal .
Removal of the Grievant was not his idea.
The First Removal Letter was typed up to be signed by Jim Bruce , who was the
immediate supervisor referred to above, and in lieu of his signing said Notice of Removal it was
signed by another supervisor , although Mr . Bruce continued to work at the same station .
APPLICABLE CONTRACT PROVISIONS
Article 15, Section 2, Step 1 (a)
Any employee who feels aggrieved must discuss the grievance with the employee's
immediate supervisor within fourteen ( 14) days of the date on which the employee or the Union
first learned or may reasonably have been expected to have learned of its cause . The employee,
if he or she so desires , may be accompanied and represented by the employee ' s steward or a
Union representative .
The Union also may initiate a grievance at Step 1 within 14 days of the
date the Union first became aware of (or reasonably should have become aware of) the facts
giving rise to the grievance .
IN such case the participation of an individual grievant is not
required . A Step I Union grievance may involve a complaint affecting more than one employee
in the office .
9
Article 15, Section 2, Step I (b)
In any such discussion the Supervisor shall have authority to settle the grievance . The
steward or other Union representative likewise shall have authority to settle or withdraw the
grievance in whole or in part . No resolution reached as a result of such discussion shall be a
precedent for any purpose .
ISSUE
Were Mrs . Dabbs due process rights, as provided for under the National Agreement,
denied to her? If so, what should the remedy be?
DISCUSSION
I have reviewed my tapes of the testimony of all the witnesses, examined and reviewed
the exhibits introduced by the parties, played my tape of the excellent closing argument made
by the Union representative of the Grievant and I have read and studied the excellent post
hearing brief filed by the representative of the Postal Service . Based on all of the above, it is
my finding that when the immediate supervisor of the Grievant, having investigated the
December 12, 1995 incident did not recommend any discipline be imposed on the Grievant
arising out of that said incident, that for the station manager to re-impose the discipline, after
the second step designee had dismissed the First Letter of Notice of Removal and made the
Grievant whole for all time missed would deny the Grievant her due process rights under the
10
National Agreement . It is my finding under the facts before me that the Second Letter of Notice
of Removal would be a violation of the due process rights of the Grievant . On that basis alone,
without consideration of the other grounds of failure of due process raised by the Union would
be sufficient to sustain the Grievance and not consider the case on its merits . The basis of my
above findings are hereinafter set out .
The Second Step designee apparently recognized that Ms . Dabbs had been denied her due
process rights under the Agreement when he rescinded the First Letter of Removal and directed
payment be made to Mrs . Dabbs for the days she had missed because of the First Letter of
Removal .
Article 15, Section 2 Step 1(a) specifically state the first step shall be with the immediate
supervisor . Step 1(b) says the supervisor shall have authority to settle the grievance . It is my
finding that Mr . Bruce did not have this authority after his original determination that Mrs .
Dabbs should not be given any discipline was overruled by the Station Manager who directed
him to remove Mrs . Dabbs from her employment . How could it be said under these
circumstances that Mr . Bruce had the authority to settle the grievance?
I am attaching hereto a copy marked Exhibit "A" of the United States Court of Appeals
Eleventh Circuit decision in the case of The United States Postal Service v . National Association
of Letter Carriers . AFL-CIO No . 87-7324
This case is an appeal from the United States
District Court for the Northern District of Alabama, NO . CV-86-G-1647-E . The District Court
11
had vacated an arbitration award because Arbitrator Giles in that award held that the removal
of the grievant was procedurally defective in that the Notice of Removal was not issued by the
grievant ' s immediate supervisor . The carrier in that case had taken money from the mail . The
carrier had been prosecuted , found guilty, and sentenced to serve 60 days in jail , plus the
remainder of his three (3) year sentence to be suspended on good behavior . When the Postal
Service issued its first Notice of Removal, it was signed by the Postmaster . The Union raised
the issue that the National Agreement required that the Notice of Removal had to be signed by
the employee 's immediate supervisor . The Postal Service reissued a Notice of Removal signed
by the grievant's immediate supervisor . The Union grieved and when the matter reached the
arbitration step, it was heard by Arbitrator Giles . In his decision in this second case, the
arbitrator found that Management's case had been flawed by its own procedural error . The
Arbitrator again upheld the grievance . This decision was appealed to the United States District
Court for the Northern District of Alabama .
The District Court held that the Arbitrator's determination that the standard for discharge
of a letter carrier pursuant to the collective bargaining agreement, incorporated procedural due
process rights that could never be cured under the terms of the agreement was arbitrary, even
assuming there was failure to strictly comply with requirements of the agreement . That there
was no rational base for a legal principle that the Postal Service could never fire employees who
stole from the mail, simply because of procedural error, and after the error was corrected the
employee suffered no prejudice as a result . That this would violate public policy, to-wit, return
a convicted felon who stole from the mail to his employment with the Postal Service .
12
The Circuit Court of Appeals held that the state of the law, on the issue whether an
arbitrator ' s decision to return to public employment a grievant whose procedural due process
may have been violated, if the basis for the termination of such grievant was contrary to public
policy, was somewhat unsettled . Therefore , the Court in affirming the District Court did so on
a different , but more established ground . The Circuit Court further stated :
"An arbitrator is confined to interpretation and application of the collective
bargaining agreement ; he does not sit to dispense his own brand of industrial
justice . . . When the Arbitrator ' works manifest an infidelity to this obligation,
courts have no choice to refuse enforcement of the award ." United Steelworkers
of America v . Enterprise Wheel & Car Corps 363 US . 593,597, 80 S . Ct .
1358,1361 .
"The arbitrator reasoned that it must be the employee ' s immediate
supervisor that initiates a proposal for disciplinary action, who
would then seek concurrence of higher authority . The arbitrator
concluded that where the higher authority , not the immediate
supervisor , issues the notice, there is a violation of procedural due
process . In this case , it is clear that both the higher authority and
the immediate supervisor concurred in the decision that Watley
should be terminated ."
"The Collective Bargaining Agreement does not suggest that only
the immediate supervisor can issue the disciplinary notice . It only
requires that the postal official discussing the Step 1 grievance be
the immediate supervisor ."
The facts in the case before this Arbitrator are very different from the facts before the
District Court and the Circuit Court of Appeals . There is not a public policy question in the
case before me . which arose out of a minor vehicle accident . The Circuit Court in its opinion,
cited above , recognizes that the National Agreement requires that Step 1 be heard by the
immediate supervisor .
The provisions of the Agreement also provides that the immediate
13
supervisor has authority to settle the grievance at Step 1 . The immediate supervisor in the case
before me testified under oath that he did not think that Mrs . Dabbs should receive any
discipline for a minor traffic accident.
When he was ordered to sign the Notice of Removal,
that authority to settle the grievance at Step 1 was taken from him and that taking denied the
Grievant a due process right guaranteed by Article 15 Step 1 (b) of the Agreement .
Coupled with the additional facts that the Second Letter of Removal was signed by the
Postmistress and heard at Step 1 by the Postmistress even though the Grievant's immediate
supervisor at the time of the incident was still working at the same station .
It is my finding that the facts in the case before me were materially different than those
in the case heard by the District Court and the Circuit Court . It is my further finding as was
the finding of the Circuit Court of Appeals that the Step 1 hearing under the Agreement is to
be heard by the immediate supervisor who must have the authority to settle the grievance . When
this right was denied to the grievant, as it was in this case, leads to the conclusion that the
grievant was denied her contractual due process rights .
It is my finding, under the facts before me, that had she been afforded the rights, as
specifically provided by the Agreement, the decision to terminate her employment would have
been different .
c : \wp5 l \johnston\usps \ dabbs . arb
14
~iA,h,• ,- / "
U.S. POSTAL SERV. Y. NAT. ASSN OF LETTER CARRIERS
Ch. m 647 Pad 773 (116 Cir. 19 4111)
775
no showing or assertion of what amend- reinstatement of letter carrier convicted of
ents can or will be made, thus giving the stealing from mar . The United States District court no basis for inferring that the trict Court for the
Northern District of
de Iciencies in the original complaint can or Alabama , No
. CV-86-G-1647-E, J . Foy
m ;t be cured sun
there
p y t 1nob as
f Gain, Jr ., J
>s' or
., vacated arbitration award, and
' ticerequiteso that
inf ~ ;mq that Jun
leave t
o
letter
carriers
union appealed. The Court
amend, be granted. See Pan-Islamic
of Appeals , Roney, Chief Judge, held that
Trade srporation a Ersorr Corporation,
632 F.
539, 546-48 (5th Cir .19S0), De. arbitrator's determination that standard
Loath u. Woodley, 406 F.2d 496, 496-97 for discharge incorporated procedural due
(5th Cir . @9) . A district court that denies process prong that could never be cured
leave to am d in that circumstance cannot under terms of collective bargaining agreeby any test be said to have engaged in an
ment, so that Postal Service would have to
abuse of discrIetion.
reinstate employee because notice of proAccepting the'deficiency in the complaint
posed removal issued to employee did not
as the majority h as it was not error to
originate from immediate supervisor, but
dismiss plaintiffs complaint against the
was from someone higher in authority, was
Town of Davie or Chief Weatherholt .
arbitrary .
to
.ptof
t71
;2) .
he
red
-t's
ay,
nts
the
of
nd3O .
arti-
th
rod, a
'&M
mdaint
There were simply inadequate allegations
to state a claim, as them. In addition
there was no abuse of ' cretion in denying
the motion for reeonsi ration as to the
Town of Davie and the Chief of Police .
That motion for reconsid
Lion was one
and the same as that previ sly described
and as to the Town and 'ef suffered
from the same deficiencies .
Thus I would reverse the order of dismissal as to officers Yawn and Behrends and
remand for further proceedings . '\,I would
affirm both the dismissal of the complaint
and the denial of the motion for reconsideration as to the Town and its police chief .
1r \
o s"Y"" .OSVSUM
UNITED STATES POSTAL SERVICE,
Plaintiff-Appellee,
Affirmed.
1 . Arbitration e-61
While great deference is normally ac
corded arbitration award, award is riot required to be enforced which is arbitrary or
capricious .
2 . Constitutional Law 41-275(5)
Labor Relations e-455
Collective bargaining agreement between Postal Service and letter carriers
union did not require that proposal for disciplinary action be initiated by employee's
immediate supervisor, rather than someone
higher in authority, and fact that notice of
proposed removal was issued by someone
higher in authority could not amount to due
process deprivation, as determined by arbitrator . U .S .C.A. Const.Amend . 5 .
V.
NATIONAL ASSOCIATION OF LET .
TER CARRIERS, AFL-CIO,
Defendant -Appellant.
No . 87-7324 .
United States Court of Appeals,
Eleventh Circuit
June 22, 1988 .
United States Postal Service challenged arbitration award which required
3. Labor Relations 41-461
Arbitrator's determination that standard for discharge of letter carrier, pursuant to collective bargaining agreement, incorporated procedural due process prong
that could never be cured under terms of
agreement was arbitrary, even assuming
there was failure to strictly comply with
requirements of agreement; there was no
rational base for legal principle that Postal
Service could never fire employee who stole
V
3
776
847
FEDERAL REPORTER, 8d SERMS
from mail simply because of procedural
error, where that error was corrected and
employee suffered no prejudice as result.
18 U .S .C .A . § 1709 ; US .C.A. Coast
Amend . 6.
Cohen, Weiss & Simon, Keith E. Secular,
John S . Bishop, New York City, Stropp &
Nakamura, Robert H . Stropp, Jr ., Birmingham, Ala., for defendant-appellant .
Prank W . Donaldson , U.S. Atty ., Herbert
J . Lewis, III, Birmingham, Ala., Kevin Rachel, U .S . Postal Service, Washington, D.C .,
for plaintiff -appellee.
Appeal from the United States District
Court for the Northern District of Alabama .
Before RONEY, Chief Judge,
TJOFLAT, Circuit Judge, and PAUL',
District Judge .
RONEY, Chief Judge :
National Association of Letter Carriers,
AFL-CIO (NALC) appeals an order of a
district court vacating an arbitration award
which required reinstatement of an employee convicted of stealing from the mail . We
affirm.
Jackie Watley, an employee of the United
States Postal Service, stole the contents of
two "test letters" prepared by a postal
inspector. Mr . Watley was charged with
two counts of violating 18 U.S .C .A . § 1709,
which prohibits mail theft by a postal employee . Count I was dropped and Mr . Watley pleaded guilty to Count 11 . On September 4, 1985, he was sentenced to a term of
three Years, the first 60 days of which was
to be served in prison with the remainder
suspended, given five years probation,
fined $2,000, ordered to reimburse the Unit
ed States Postal Service $11 .25 for the
money stolen from the mails, and ordered
to pay a special assessment of $50 .00.
On April 11, 1985, Mr . Watley had been
issued a notice of proposed removal, which
apprised him of the charges against him,
' Honorable Maurice M . Paul, US . District Judge
for the Northern District of Florida, sitting by
.
when the proposed removal would become t
j .
e ffective, to whom he could respond ,
andotherifmn
, including his right to fife
a grievance under the provisions of the
Collective Bargaining Agreement between
the NALS and USPS . The postmaster issued a final letter of decision on April 19, j
1986, discharging Watley and informing
him that conuc
hisdtiltd
hi f
voaesducisry
responsibilities and amounted to a betrayal ;
of public trust.
.l
Watley filed a grievance under the Cots
lective Bargaining Agreement which pra
vides for resolution of disputes through I,
multi-step grievance proceeding cnlmhtafr
ing in arbitration before a neutral arbft
tot When Watley' s grievance came to ate
bitration in November, 1985, the arbitrator
found that the first notice of proposed removal issued to Watley was defective because it did not originate from his immedj-j e
ate supervisor , but from someone higher]
authority . The arbitrator labeled this"
feet a violation of due process and order
Watley reinstated with back pay .
The postal service corrected this prose--.
A_, error by issi
ung a secon
dti
noce
proposed removal dated November s
1985, this one from Watley' s immediate,
supervisor . This second notice was fol-I
l owed by er
a oecsonrom
lettf dii
fhs
te Po
master terminating Watley,
An appeal followed, culminating in a seta J
and hearing . In this second proceeding
the arbitrator upheld his previous ruling,
finding the procedural error non-correct
able, stating:
The Arbitration Hearing on November ' ;y
15, 1985, addressed, in its early stages,.
the Union's charge that Management's x_
Case had been flawed by its own prose- 3
ducal errors . The evidence was clear
that Grievant's removal had not been .i2
proposed by Grievant' s immediate super-
visor, Roger Dempsey, but the action to
remove originated with someone higher y
in authority than Dempsey who, under
the circumstances, would not have had
designation .
U .S . POSTAL SERV . v. NAT . ASSN OF LETTER CARRIERS
Ch. . 347 Pfd 77 3 ( 11 to C, . 1116)
777
the authority to settle the Grievance at the arbitration award, due to the delay in
step one . In order for the proceedings to its implementation
.
meet the requirements of the National The district court vacated this award on
Agreement, such a proposal for discipli- a motion for summary judgment an the
nary action must originate with the im- ground that reinstatement of Watley with
mediate supervisor, who would then seek the postal
service , after his penal detention,
concurrence of higher authority
. In this is contrary to public policy .
Case due process was not protected and
the Grievance was upheld . From this The public policy point turns on whether
point on . the merits of the Case are given the case meets the Supreme Court's decino further consideration . sion concerning the effect of public policy
considerations on labor arbitration awards
This type of a case is, inevitably, frus- in
Wit Grace and Co. v. Local Union 759,
trating to Management which doubtless 461 US . 757, 103 S
.Ct. 2177, 76 L .Ed .2d 298
has ample evidence to justify removal of ( 1988) .
See
also
United Paperworkers
Grievant if the Case could be dealt with
Int7 Union, AFL-CIO v . Misco, Inc., on its merits as it was in the Federal US, -, 108 S
.Ct. 364, 98 L.Ed.2d 286
District Court, which does not operate (1987)
. We see considerable merit in the
under the National Bargaining Agree- district court's rationale that there is a
ment
. Once an employee's right of due public interest in not having postal employprocess has been breached, that Case ees who steal from the mail that brings a
must be settled on the grounds that public policy to bear on this case .
See
those charges cannot be upheld as a basis for disciplinary action . In order for
the Grievant in this case to be charged
by the Postal Service he would have to
have committed a new offense while on
duty . The second round of proposed removal, offers some additional information on the Judicial Action taken by the
Federal District Court, but the charges
made on November 20, 1985 are the
same charges contained in the original
Notice of Proposed Removal, dated April
11, 1985 .
In making the Award in this Case, I shall
reiterate that both rounds of removal
notices and the corresponding Grievances
are being dealt with as a unit . It is the
verdict of this Arbitrator that the Grievances are upheld in recognition of the
fact that the procedural errors were
made by Management, as it took steps to
remove Grievant from the Postal Service,
undermined his right of due process .
The arbitrator Ordered all notices and
letters of decision removed from Watley's
file, reinstatement with back pay and lost
benefits (exclusive of 60 days grievant
spent in jail serving the criminal conviction
that arose out of these events) and 10%
interest on the accrued pay that Watley
was eligible to receive under the terms of
United States Postal Service v . American
Postal Workers Union, AFL-CIO, 736
F.2d 822 (let Cir .1984) (arbitration award
requiring Postal Service to reinstate employee convicted of embezzling a large sum
of money from it held to be a violation of
public policy) . Cf Iowa Elec . Light & Ptr.
Co. v. Local Union 804 . 834 F .2d 1424 (8th
Cir .1987) (arbitrator's award requiring reinstatement of nuclear power plant employee
who was discharged for violating federal
safety regulations vacated on public policy
grounds) ; Stead Motors v . Automobile
Machinists, Lodge 1178, 843 F .2d 357 (9th
Cir .1988) (arbitrator's award requiring reinstatement post 120-day suspension of discharged automobile mechanic vacated on
public policy grounds) . Nevertheless, since
the state of the law on the issue seems
somewhat unsettled, cf. United States
Postal Service v . American Postal Workers Union, AFL-CIO, supra, with United
States Postal Service v . Natl. Assoc. of
Letter Carriers, AFL-CIO, 810 F .2d 1239
(D .C .Cir .), petition for cert. granted, U .S . - 108 S .Ct. 500, 98 L .Ed .2d 499
(1987), petition for cer, dismissed as improvidently granted, - U .S . -, 108
S .CL 1589, 99 L .Ed .2d 770 (1988) (award
requiring reinstatement of postal employee
convicted of unlawful delay of the mails
held not violative of public policy), we af-
778
847 flDERAL REPORTER, 2d SERIEs
firm the district court on a different, but
more established ground . See Securities
and Exchange Comm 'r, v. Chenery Corp.,
18 U .S . 80, 88, 63 S.Ct . 454, 459, 87 LEd
.
626 (1943 ) (decision of lower court must be
affirmed if the result is correct although
the lower court relied upon a wrong ground
or gave a wrong reason) .
The Collective Bargaining Agree
does not
ugges
st that only the imm~
supervisor can issue the disciplinary no
t only requires that the postal official
cussing the Step 1 grievance be the imme
diate supervisor
Th e arbitrato
.r
reasoned
that if a high er level supi
ervsor was on
record favoring discipline,emm
th i
t
supervis or would not fl
f
eeree
to . o , .
(1] While great deference is normally
the Step I grievance and therefore the s
accorded an arbitration award, an award is
..
perviaor initiating the discipline must also
not required to be enforced which is arbibe the immediti
ae supervsor. This argu:
trary or capricious . See Drummond Coal
meat
-'Co. v. United Mine Worker, of Am., 748
cause
ager ,
hih
'"m be
supervisor will always be on record a}
F.2d 1495, 1497 (11th Cir .1984
) (citing Lovevoting discipline by the time the
less a Eastern Air Liner Ins, 681 F.2d
meeting
is held Higherlevel concurre,
1272, 1276 (11th Cir. 1982)) ; United Steelis required before disciplinary action cs~t
workers of Am. v. US Gypsum Co., 492
imposed. Thus , no matter which super
F .2d 713, 730 (5th Cir.), cert.
denied, 419
sor
proposed the removal , Postnres„w
U.S . 998, 95 S .Ct. 312, 42 LEd . 271 (1974)
;
Clark
would be on record at Step I as
Safeway Store, v. Am. Bakery & Confecconcurring .
tionery Workers
Intl. Union, Local 111,
390 F .2d 79, 81 (5th Cir.1968) . "[A)n arbitrator is confined to interpretation and application of the collective bargaining ag
reement; he does not sit to dispense his own
brand of industrial justice . . . . When the
arbitrator's words manifest an infidelity to
this obligation, courts have no choice but to
refuse enforcement of the award ."
United
Steelworkers of Am v . Enterprise Wheel
& Car Corp ., 363 U.S . 593, 597, 80 S .Ct.
1358, 1361, 4 LEd .2d 1424 (1960) . Such is
the case here .
(31 Even if there were a failure
strictly comply with the requirements
the contract, that would not rise to a _~
stantive due process violation but woul4
only be a proce d ural
dueili
process voato n.
No authority has been cited that holds in'r
.
suchh a case that eithereaure
th filtoo
f
the contractt precisely or the due process :
violation could not be cured . In our ,
ment it is arbitrary to conclude that
standard for discharge incorporates a ,..
ee dural
dur al due process prong
that can ne6~
be cured under the terms of the Collecti
Bargaining Agreement . There is no ra
al base for a legal principle that the ,._„,
service can never fire an employee who
steals from the mail simply because of a
Procedural error, where that error is cot .
rected and the grievant suffers no preju-`
dice as resu
alt.
[2] The arbitrator reasoned that it must
be the employee 's immediate supervisor
that initiates a proposal for disciplinary
action, who would then seek concurrence of
higher authority . The arbitrator concluded
that where the higher authority, not the
immediate supervisor, issues the notice,
there is a violation of procedural due proCases have consistently held that a viola=
cess . In this case, it is clear that both the
tion of procedural due process may be
higher authority and the immediate super
waivedd or cured . See Glenn v. Newfnan; .
visor concurred in the decision that Watley
614 F2
.,r
d 467 472 (5th Ci1980
.
), criticis ed
should be terminated . The first notice, as
on other grounds, County of Mon.
well as the second notice, was sufficient to
Florida a U.S Dept, of Labor,
690 F,S ,
put Watley on notice of the charges against
1359, 1363 (11th Cir .i982) (procedural due
him . Neither the arbitrator nor the appelProcess violation resulting from lack of adlants have cited any authority that there
was a violation of due process in the han- equate notice in pre-termination procedures
cured through subsequent post- termination
dling of the case .
public hearing) ; Barnett V. Housing Auth.
HOIHU r .
as s 147 P.2d 779
of Atlanta, 707 F .2d 1571, 1578 (11th Cir .
1983) (waiver).
Watley has not shown how he has been
prejudiced in any way in being able to
contest his removal on the merits in an
arbitration hearing because of this se-
quence of events .
Used ar . 1911)
779
(th him on the brief were Richard K .
d, Asst Atty . Gen ., Joseph E . diGeU.S . Atty., Jeffrey Axeirad, Director,
ranch and Barbara L . Herwig.
i RICH and NIES, Circuit
d BALDWIN, Senior Circuit
Accordingly, the district court is
AFFIRMED.
Willi
HOHRI
Ho._
Chi" ;
Hannah Takagi
s;
uko Omori, Ind . and Rep.
for I ruko Omori ; Midori Kimura ;
Kerry
mori ; John Omori, Ind . and
Rep. for uro Omen ; Gladyce Sumida ;
Kyoshlro Tokunaga ; Tom Nakao ; Harry Ueno: Edward Tokeshi ; Rentaro
Hashimoto, Nelson Kitsuse, Ind . and
Rep, for Ta eshi Kitsuse ; Eddie Sato ;
Sam Ozaki, 41 d . and Rep. for Kyujiro
Ozaki ; Kum Toda . Ind . and Rep, for
Suketaro Toda, Kaz Oshiki ; George R.
ikeda ; Tim T yoshi ; Cathy Takayoahi ; National uncil for Japanese
Amer . Redress, P intiffs-Appellants,
The UNITED STA'IcES of America,
Defendant -Appellee.
No . 87-1635 .
United States Court ~{ Appeals,
Federal Circuit,.
May 11, 1988 .
Appealed from : U .S . District Court for
the District of Columbia ; Qberdorfer,
Judge,
Benjamin L . Zelenko, Landis, Cohen,
Rauh and Zelenko, Washington, C ., argued for plaintiffs- appellants , With im on
the brief were B . Michael Rauh and artin
Shulman .
Jay S . Bybee, Dept. of Justice, Wash
ton, D .C ., argued for defendant-appeal
PER CU M .
This appeal omes to this court following
the decision of a Supreme Court in United States v. Hoh ' 482 U .S . -, 107 S,Ct
2246 , 96 L.Ed .2d 1 (1987) ( vacating judgment of District o Columbia Circuit and
remanding with ins coons to transfer to
this court pursuant
28 U .S .C . § 1631
(1982)) . In Hohn, the upreme Court held
that a case which prese is both a nontax
claim under the "Little ucker Act," 28
U .S .C . § 1346(aX2) (1982 ), nd a claim under the Federal Tort Claims ct, 28 U .S .C .
§ 1346(b) (1982), as here, ma be appeale
only to the Court of Appeals fo the Fed
al Circuit.
The appeal here is from the jud
!nt of
the United States District Court
r the
District of Columbia, 586 FSupp . 76 (D . D .
C .1984) (Oberdorfer, J .), dismi4sin
the
claims of nineteen individuals and an o
nization of Japanese-A meridans w
sought damages and declaratory relief
h
injuries resulting from the internment o
Japanese-Americans during' World War II .
The district court held, /inter alia, that
appellants' claims were ,barred by applicable statutes of limitations .
Each of the name us issues raised to
this court is fully addressed in the opinion
of Judge Oberdo r . After a meticulous
review of that op' ion, we are unpersuaded
of any error . W see no need to restate or
elaborate on district court's careful and
scholarly ana sis, nor to burden appellants
with furthell delay . Accordingly, we affirm for the reasons stated in the district
court opinion .
AFFIRMED .
BALDWIN, Senior Circuit Judge,
dissenting-in-part .
Tlie majority adopts, in toto, the District
Court's opinion, Hohri v . United States,