lij - national association of letter carriersmseries.nalc.org/c17674.pdfin addition to the above,...

17
IY INTHEMATTEROFTHEARBITRATIONBETWEEN UNITEDSTATESPOSTALSERVICE AND) NATIONALASSOCIATIONOF LETTER CARRIERS CASENO.H94N-4H-D97053392 GTSNO . 035813 GRIEVANT : G .H .Baird,Jr . PLACE :St .Augustine,FL DATE :December3,1997 ****************************************************************************** BEFORE :J .REESEJOHNSTON,JR .,ARBITRATOR APPEARANCES :FORTHEPOSTALSERVICE : RonMidkiff,Labor RelationsSpecialist North FloridaDistrict United StatesPostal Service 1300GulfLifeDrive P .O .Box40005 Jacksonville ,FL32203-6563 FORTHENALC : John W .Bourlon,Advocate 14803SeminoleTrail Seminole,FL33776 Suite325 esJo tin, Jr., Aibitra. We'Shades 'CdeekParkway Birmingham ,AL35209 AWARD : Thegrievance ofG .H .Baird, Jr .isgrantedandthesevendaysuspension shallbereduced toaLetter ofWarning . ThePostal Serviceis directedto compensate theGrievant, G.H .Baird, Jr .for thepayhelostasaresultof thesevendaysuspension . DATEOFAWARD : December 22,1997 fi DEC241997 Ltt-il lij I„ , s ~rlr~nnn-` D Na ,," naf us, .,es "uU Re~tons

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Page 1: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

I Y

IN THE MATTER OF THE ARBITRATION BETWEEN

UNITED STATES POSTAL SERVICE

AND )

NATIONAL ASSOCIATION OFLETTER CARRIERS

CASE NO. H94N-4H-D97053392GTS NO. 035813

GRIEVANT: G. H. Baird, Jr .

PLACE: St. Augustine, FLDATE: December 3, 1997

******************************************************************************

BEFORE: J. REESE JOHNSTON, JR ., ARBITRATOR

APPEARANCES: FOR THE POSTAL SERVICE:Ron Midkiff, Labor Relations SpecialistNorth Florida DistrictUnited States Postal Service1300 Gulf Life DriveP.O. Box 40005Jacksonville, FL 32203-6563

FOR THE NALC :John W. Bourlon, Advocate14803 Seminole TrailSeminole, FL 33776

Suite 325

es Jo tin, Jr., Aibitra.We' Shades 'Cdeek Parkway

Birmingham , AL 35209

AWARD: The grievance of G. H. Baird, Jr. is granted and the seven day suspensionshall be reduced to a Letter of Warning . The Postal Service is directed tocompensate the Grievant, G. H. Baird, Jr. for the pay he lost as a result ofthe seven day suspension .

DATE OF AWARD : December 22, 1997

fiDEC 2 4 1997

Ltt-il lij I„ ,

s~rlr~nnn-`DNa,,"naf us, .,es

" u URe~tons

Page 2: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

BACKGROUND

By letter dated November 25, 1996, the Grievant, G . H .

Baird, Jr ., was notified of a Notice of Disciplinary Action .

This Notice read as follows :

"November 25, 1996

MEMORANDUM FOR : G . H . BAIRDCITY CARRIERST. AUGUSTINE , FL POST OFFICE

SUBJECT: Notice of Disciplinary Action

You are hereby notified of your suspension from dutywithout pay for seven ( 7) consecutive calendar days for thefollowing reason :

CHARGE NO . 1 . IMPROPER CONDUCT-DISRESPECT TO SUPERVISOR

On November 19, 1996 , you were given a discussionregarding your disruptive disrespectful conduct towardme your supervisor . immediately after leaving the room,you said loudly to me, "You ain ' t nothing, you don'ttell me what to do . " O/C Al Winters was walking intohis office and heard your outburst . He stated to you,"He's your supervisor ." You repeated "He ain'tnothing." and then said to Mr . Winters "and you ain'tnothing." Mr . Winters repeated what you had said inthe form of a question . "You ain't nothing ?" At thatpoint Mr . Winters instructed you to return to yourcase .

When questioned concerning this matter, you said youwere not disruptive and that Mr . Al threatened you andtold you that you were nothing .

Your actions have been contrary to your duties andresponsibilities as a postal worker , as well as parts 666 .1,666 .2 and 666 .51 of the Employee and Labor Relations Manualand parts 112 .21 and 112 .25 of the M-41 Handbook .

2

Page 3: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

In addition to the above, the following elements of yourpast record were considered in taking the action :

1 . A letter of warning dated May 3, 1996, because ofimproper conduct-disrespect to a supervisor .

You will remain in an active duty status during the advancenotice period .

Date and time suspension to commence : beginning of your touron Monday , December 39m 1996 .

Date and time suspension to end : end of your tour on Sunday,January 5, 1997 .

You are requested to turn in your Postal Service badge toyour immediate supervisor on the last scheduled workdayprior to the effective date of the suspension .

You may appeal this action in accordance with Article 15 ofthe National Agreement within 14 days of the receipt of thisnotice .

George R . ArsenaultSupervisor , Customer Services

RECEIVED BY EMPLOYEE DATE

TIME

The Grievant refused to sign a receipt for the letter

but the letter was read to him by his supervisor on 11/26/96 .

After the notice letter was discussed in Step 2 and no

agreement being reached, the case was appealed by the Union on

its Standard Grievance Form . On this form under the Section

3

Page 4: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

entitled Facts, the Union stated "Discipline issued to G . Baird

on 11 / 25/96 . 7 day suspension for 'improper conduct - disrespect

to supervisor ."' Under the portion entitled Union Contentions it

stated. "Discipline issued was not for just cause . Management

failed to follow principles of progressive discipline . Charge

not a proper base for discipline . Mitigating circumstances .

Grievant denied due process - improper citation of pending

discipline . And the corrective action requested was 1 . The 7-day

suspension be rescinded and all records be removed from file . 2 .

Make Grievant whole for any and all loss ."

The Letter of Warning referred to in the November 25,

1996, Notice of Disciplinary Action was issued on May 3, 1996,

and it charged improper conduct/disrespect to a supervisor . This

Letter of Warning had been grieved and was still in the grievance

process at the time of the issuance of the November 25 Notice of

Disciplinary Action . The testimony at the hearing before me was

that Letter of Warning was settled in April 1997 by agreeing to

remove it from the grievance file but on the further condition

that no further incidents occur . It was also stated that there

were other incidents following the settlement of the May 3, 1996,

Letter of Warning .

An interesting thing occurred in the Request For

4

Page 5: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

Disciplinary Action by Mr . Baird's supervisor . This request for

disciplinary action is marked Exhibit A and is attached to this

Opinion and made a part hereof . Two things should be noted from

this Request for Disciplinary Action .

1 . The Supervisor made two recommendations in his

request. 1) He recommended that due to progressive discipline a

7-day suspension was warranted . 2) He recommended "Letter of

Warning ." It was also pointed out by the Union that there had

been no concurrence by a higher supervisor in the request for

discipline . As is shown on Exhibit A the higher supervisor dated

his concurrence 1/20/96 . If this date were correct it, of

course, would have been reviewed and concurred in eleven months

prior to the request being made . It should be noted that it is

my finding based on the testimony of the higher official, one

Pete Hefner, that he reviewed and concurred in the requested

disciplinary action on 11/20/96, not 1/20/96 . However, the

concurrence does not state which recommendation he concurred in,

1) the 7-day suspension or 2) a Letter of Warning .

The Step 2 grievance decision read as follows :

"DATE : 01-23/97

STEP 2 GRIEVANCE DECISIONGRIEVANT : BAIRD, GEORGE H .

5

Page 6: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

NALC 28096

NALC PRESIDENTBRANCH 689PO BOX 161ST . AUGUSTINE , FL 32085-0161

IN ACCORDANCE WITH ARTICLE 5, ECTION 2 OF THE NATIONALAGREEMENT , THE ABOVE REFERENCED GRIEVANCE WAS DISCUSSED ATSTEP 2 WITH NALC REPRESENTATIVE JEANNE ROBSHAW AND USPSREPRESENTATIVE PETE HEFNER ON 01/07/97 .

MR . BAIRD WAS ISSUED A 7 DAY SUSPENSION ON 11/26/97 FORIMPROPER CONDUCT/DISRESPECT TO A SUPERVISOR .

ALSO NOTE THE FOLLOWING :BY MUTUAL AGREEMENT THE SUSPENSION AND STEP TWO DECISION WASEXTENDED TO GIVE GRIEVANT TIME TO CONSIDER OFFER BYMANAGEMENT TO REDUCE SUSPENSION TO A PAPER SUSPENSION, (NOMONEY LOST ) TO BE HELD IN FILES FOR A ONE YEAR PERIOD .

UNION CONTENDS THAT MANAGEMENT ISSUED DISCIPLINE WITHOUT

JUST CAUSE . MANAGEMENT FAILED TO FOLLOW PRINCIPLES OF

PROGRESSIVE DISCIPLINE . CHARGE NOT PROPER BASIS FOR

DISCIPLINE . MITIGATING CIRCUMSTANCES OF SICK WIFE . UNPAID

BILLS ETC . GRIEVANT DENIED DUE PROCESS . IMPROPER CITATION

OF PENDING DISCIPLINE .

REMEDY REQUESTED BY UNION IS TO RESCIND SEVEN DAY SUSPENSIONAND MAKE GRIEVANT WHOLE REMOVE SUSPENSION FROM ALL RECORDSAND FILES .

MANAGEMENT CONTENDS THAT DISCIPLINE WAS ISSUED FOR JUSTCAUSE AND PROPERLY CITED A LETTER OF WARNING WAS ISSUED ON

05/09 /96 FOR IMPROPER CONDUCT/DISRESPECT TO A SUPERVISOR .

(SEE ATTACHED)THERE ARE NO MITIGATING CIRCUMSTANCES THAT ALLOWS A POSTALEMPLOYEE TO BE DISRESPECTFUL TO A SUPERVISOR . THAT MR .

BAIRD DOES NOT RESPECT MANAGEMENT PERSONNEL IS EVIDENT BYTHE NATURE OF THE PRIOR DISCIPLINE AND THIS DISCIPLINE

ACTION AS WELL . THE FACT THAT OF HIS BEHAVIOR IN THEPRESENCE THE OIC AND STATION MANAGER SHOWS TOTAL DISREGARD

FOR ANY MANAGEMENT POSITION . (SEE LOW AND SUSPENSION LETTER

CONTENTS ) ATTACHED .

6

Page 7: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

AS PER MUTUAL AGREEMENT WITH NALC PRESIDENT AND POSTMASTER(SEE ATTACHED ) THE FOLLOWING DATES ARE NOTED FOR THE SEVENDAY SUSPENSION TO BEGIN AND END WITH ( REQUIREMENTS OF

ORIGINAL INSTRUCTIONS THE SAME .)

DATE AND TIME SUSPENSION TO COMMENCE BEGINNING OF TOUR ONMONDAY FEBRUARY 3, 1997 .DATE AND TIME SUSPENSION TO END : END OF YOUR TOUR ON SUNDAY,

FEBRUARY 9, 1997 .

AFTER CONSIDERING ALL OF THE FACTS AND EVIDENCE PRESENTED, IFIND NO VIOLATION OF THE PROVISIONS OF THE NATIONALAGREEMENT, THEREFORE THIS GRIEVANCE IS DENIED .

/s/ Pete HefnerPETE HEFNERU . S . POSTAL SERVICESTEP 2 DESIGNEE

The Union filed a Letter of Corrections and Additions

which read as follows :

"FEBRUARY 3, 1997

MR . E . T . HEFNER , STEP 2 DESIGNEEMR . J . BLUHM, POSTMASTERST . AUGUSTINE POST OFFICE99 KING STREETST. AUGUSTINE , FL 32084

RE : GRIEVANCE #28096GRIEVANT : GEORGE BAIRD

LETTER OF CORRECTIONS AND ADDITIONS

PURSUANT TO ARTICLE 15, SECTION 2, STEP 2g OF THE NATIONAL

AGREEMENT , THIS LETTER OF CORRECTIONS AND ADDITIONS SHALL BEINCLUDED AS PART OF THE ABOVE REFERENCED FILE , IN RESPONSE

TO THE STEP 2 DECISION , DATED 1 /23/97 AND RECEIVED ON

1/24/97 .

7

Page 8: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

I SUBMIT THE FOLLOWING CORRECTIONS FOR THE FILE :

IN YOUR STEP 2 DECISION LETTER YOU STATED " UNION CONTENDS

THAT MANAGEMENT ISSUED DISCIPLINE WITHOUT JUST CAUSE .

MANAGEMENT FAILED TO FOLLOW PRINCIPLES OF PROGRESSIVE

DISCIPLINE . CHARGE NOT PROPER BASIS FOR DISCIPLINE .MITIGATING CIRCUMSTANCES OF SICK WIFE , UNPAID BILLS, ETC .

GRIEVANT DENIED DUE PROCESS . IMPROPER CITATION OF PENDING

DISCIPLINE ." YOU FAILED TO INCLUDE ALL ISSUES RAISED BY THEUNION AT THE STEP 2 MEETING . A COPY OF THE UNION'S

CONTENTIONS AND REMEDY IS ATTACHED TO THIS LETTER .

IN YOUR STEP 2 DECISION LETTER YOU HAVE STATED " MANAGEMENTCONTENDS THAT DISCIPLINE WAS FOR JUST CAUSE . A LETTER OFWARNING WAS ISSUED ON 05/09/96 FOR IMPROPER CONDUCTDISRESPECT TO A SUPERVISOR . (SEE ATTACHED )" THERE WERE NOATTACHMENTS TO YOUR STEP 2 DECISION LETTER .

IN YOUR STEP 2 DECISION LETTER YOU ALSO MADE REFERENCE TOLOW AND SUSPENSION LETTER CONTENTS ATTACHED . AGAIN, THEREWERE NO ATTACHMENTS TO YOUR STEP 2 DECISION LETTER .

I SUBMIT THE FOLLOWING ADDITIONS FOR THE FILE :

ARTICLE 15 , SECTION 2, STEP 2f STATES THE DECISION SHALLINCLUDE A FULL STATEMENT OF THE EMPLOYER'S UNDERSTANDING OF(1) ALL RELEVANT FACTS, (2) THE CONTRACTUAL PROVISIONSINVOLVED AND (3 ) THE DETAILED REASONS FOR DENIAL OF THEGRIEVANCE ." YOUR DECISION FAILED TO INCLUDE A DETAILEDSTATEMENT OF THE FACTS . PRESENTED AT STEP 2 OR THECONTRACTUAL PROVISIONS INVOLVED . YOU FAILED TO MENTION ALLOF THE UNION CONTENTIONS AND THE CONTRACTUAL PROVISIONSINVOLVED . YOUR FAILURE TO RENDER A PROPER GRIEVANCEDECISION AT STEP 2 IS A VIOLATION OF THE CONTRACTUALPROVISIONS OF THE GRIEVANCE PROCEDURE .

IN ADDITION, IT MUST BE NOTED THAT THE UNION STILL HAS NOTBEEN AFFORDED THE OPPORTUNITY TO CONDUCT INTERVIEWS ANDCOMPLETE INVESTIGATION RELEVANT TO THIS GRIEVANCE . THELIMITED AMOUNT OF TIME ALLOWED FOR STEWARD TIME AND THEEXCESSIVE AMOUNT OF GRIEVANCES TO BE PROCESSED DOES NOTALLOW SUFFICIENT TIME FOR PROPER PREPARATION OF ANY OF THEGRIEVANCES TO THE DETRIMENT OF THE GRIEVANT .

8

Page 9: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

THIS LETTER IS AN OFFICIAL PART OF THE GRIEVANCE FILE AND

WILL BE INCLUDED IN THE STEP 3 APPEAL .

/s/ JEANNE ROBSHAWJEANNE ROBSHAWPRESIDENT , NALC BRANCH 689P . O . BOX 161ST . AUGUSTINE, FL 32085-0161

The Union appealed the grievance to the third step and

gave as its reasons for appeal as follows : Seven days suspension

issued to Grievant was not for just cause . Grievant denied due

process, Management failed to follow procedures of progressive

discipline, Management failed to properly investigate, improper

citation of pending discipline . And all other arguments from

Step 1 and Step 2 are carried forward . Management refused to

allow the Union to process this grievance, appeal filed off the

clock under duress, in violation of Articles 15 and 16 . The

corrective action requested was suspension be rescinded and all

records be removed from the files . Make Grievant whole from any

and all loss .

read as follow

The Third Step

s :

Grievance decision by Management

"Mr . Matthew L . Rose H94N- 4H-D 97053392 DIST 320National Business Agent 02/11/97 28096National Association of BAIRD JR G

Letter Carriers SAINT AUGUSTINE , FL 32084-9998AFL-CIO

Provision Allegedly Violated 16 .4000/65 .1800/65 .0205

9

Page 10: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

Subject : Regional Grievance Decision

Dear Mr . Rose :

After considering all available evidence in the record andthat offered by the union at the Step 3D hearing on April25, 1997 , it is my decision to deny the grievance .

In this case , the grievant was issued a fourteen (7) daysuspension for, (1) improper conduct-disrespect tosupervisor . Evidence in the file , indicates the grievantwas guilty as charged . On November 19, 1996 , the grievantwas given a discussion regarding his disruptive,disrespectful conduct towards his supervisor . Immediatelyafter leaving the room the grievant said loudly to thesupervisor , "You ain't nothing , you don ' t tell me what to

do ." The Officer -In-Charge was walking into the room andoverheard the conversation and the grievant ' s outburst . Hestated to the grievant , "He is your supervisor", the

grievant repeated , " He ain't nothing ," and then said to the

Officer- In-Charge , " And you ain ' t nothing " . The Officer-In-Charge repeated what the grievant had said and theninstructed the grievant to return to his case. The

grievant ' s behavior was in violation of section 666 .1, 666 .2

and 666 .51 of the Employee and Labor Relations Manual and

section 112 .21 , and 112 .25 of the M-41 Handbook . In

addition , the grievant was issued a letter of warning on May3, 1996 , for improper conduct-disrespect to a supervisor .

Therefore , this grievance is denied .

In our judgment , the grievance does not involve anyinterpretive issue ( s) pertaining to the National Agreementor any supplement thereto which may be of generalapplication . Unless the union believes otherwise , the casemay be appealed directly to regional arbitration inaccordance with the provisions of Article 15 of the NationalAgreement .

/s/Bernard U . Richardson

Bernard U . RichardsonLabor Relations Specialist

cc : District Office Jacksonville, Fl .Postmaster St. Augustine, Fl .

10

Page 11: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

ISSUE

Did the Postal Service have just cause to issue the

Notice of Disciplinary Action? If not, what should the remedy

be?

DISCUSSION

I have reviewed my tapes of the testimony of the

witnesses , examined the exhibits introduced by the parties and

reviewed the excellent closing oral arguments made by the

representatives of the parties . Based on all of the above, it is

my finding :

Grievant Mr . Baird was ordered to come to work on his

off day, Tuesday, November 19, 1996 . That he immediately went to

work on his normal daily route and when Frank Debisceglie came to

work he began helping him case his route, that while going to

help Frank and while walking between the route cases the

supervisor said to him in an arrogant way "You belong on Route

C-28 ." Mr . Baird replied that he said don't worry, Frank and I

are working everything out between both routes . At that time

supervisor Arsenault told him to face the case . The Grievant

told the supervisor not to talk to him that way, that he had

worked too many years on this job to be treated in that manner .

That a few minutes later while the Grievant was casing route

11

Page 12: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

C-28, supervisor Arsenault came to his case and said "come into

the office . I want to have a discussion about what went on ."

That the Grievant stated "I will go in the office when a shop

steward is available to be with me ." The Supervisor replied that

he did not need a shop steward, it was only a discussion, to

which the Grievant replied, "I don't trust you and I don't want

to be alone with you ." At that time the Grievant called E .

Hefner, another supervisor over to him . Hefner said it's only a

discussion and that the Grievant didn't need a shop steward and

that Hefner will go in the office with the Grievant and the

supervisor . That Hefner , the supervisor and the Grievant went

into the Postmaster ' s office for a discussion . The Grievant

stated that he asked if this could lead to discipline and was

told no . In the Postmaster ' s office, the Grievant stated that he

told Pete Hefner in front of the supervisor that "I am on this

job too long to be talked to and taking orders from someone like

Arsenault , he is nothing ." It is my finding that the Grievant

then went to the door of the office , opened the door and started

to step through when the acting officer-in -charge, Al Winters,

was approaching the door to the office . That Winters had seen

and heard the Grievant while coming out of the office loudly

telling supervisor Arsenault that he was nothing and that he,

12

Page 13: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

meaning supervisor Arsenault , couldn't tell him what to do . At

this time Al Winters stated "He is your supervisor " to which the

Grievant replied "He ain't nothing " and in talking to Winters,

stated "You ain't nothing ." Winters ordered the Grievant to

return to his case which , after getting a drink of water, the

Grievant did .

The Union raised a number of issues of denial of due

process, the first one being that the notice of the 7-day

suspension included a notice of a discussion , and that this was

wrong . In this regard it is my finding that the only reference

to the discussion was to indicate where the later disrespectful

or improper conduct occurred and was not cited as an element of

past discipline . I therefore find this issue raised by the Union

not to be well taken . The Union also raised as a denial of due

process the fact that the Grievant was not permitted to have a

shop steward at the discussion . The contract clearly provides

that a discussion shall be between the supervisor and the

Grievant and no other person need be present . The Union also

raised the fact that E . Hefner, another supervisor , was present

at the discussion . It is my finding in this regard , based on the

testimony , that the Grievant asked Mr . Hefner to go with him into

the office because he did not want to be in the office alone with

13

Page 14: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

supervisor Arsenault . Therefore , I find that those issues raised

by the Union as a denial of due process are not with merit . The

Union also raised the issue of there being no concurrence by

higher authority in the request for discipline by the immediate

supervisor . Earlier in this opinion I have discussed this and

found that this was not well taken and was without merit as to

the question of due process . The Union also contends that the

language addressed to a supervisor, to-wit, " He ain't nothing"

and to the acting Postmaster that "he ain't nothing either" ;

being lacking in profanity and lacking in insubordination would

be insufficient to bring a disciplinary charge against the

Grievant . The Union cited an expedited case and it is my

understanding that expedited cases are not to be cited as

authority in any future arbitration case and also that case dealt

with a delay in granting a pay increase . I therefore will not

consider that case, it being an expedited case . None of the

other cases cited by the Union dealt with the question of whether

disrespectful conduct could be the basis of discipline where

there was an absence of the use of profanity or an absence of any

insubordinate act .

In the case before me , much of the testimony dealt with

the Grievant stating to two supervisors that they ain't nothing .

14

Page 15: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

However, to me the most important part of his alleged statement

was when he said "You don ' t tell me what to do ." This is

insubordination as it is acknowledged without exception that

supervisors are to tell employees what to do and if the employee

does not think that order is appropriate, he has the right under

the contract to file a protest . The only exceptions are if

following the order would create a physically harmful situation

or would subject the employee to criminal charges . The universal

rule is that the employee obeys the order now and protests the

order at a later time . Therefore , based on the alleged statement

"you don't tell me what to do", it is my finding that this

language would qualify as disrespect to a supervisor coupled with

insubordination . All the other cases cited by the Union except

one dealt with the Management ' s failure to review and concur in

the requested discipline . I have already alluded to that

particular thing and attached Exhibit A to this opinion , having

found that there was a proper concurrence even though the date

was inadvertently incorrect . However, I did leave for discussion

the fact that there were two recommendations made by the

immediate supervisor and the concurrence did not state which of

the recommendations was being concurred in . It is my finding

that this under the facts before me was harmful error .

15

Page 16: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

The Union also alleges that the Union Steward was denied

sufficient time to investigate and prepare the grievance . Based

on the testimony of the number of hours that have been granted to

union stewards at this particular post office, it is my finding

that this claimed denial of due process was not proved by the

testimony and therefore has no merit .

Based on the above discussion, it is my finding that the

alleged denial of due process did not in any instance except one

reach a level of seriousness so as to be considered harmful error

as defined by the United States Supreme Court in the case of

Cornelius V . Nutt . It is my finding that the Postal Service

through its management official made two recommendations of

discipline . The concurrence of the higher official does not

state which recommendation he concurred in ; therefore, the

concurrence lacks finality . This failure should result in the

lesser discipline being imposed .

AWARD

The grievance of G . H . Baird, Jr . is granted and the

seven day suspension shall be reduced to a Letter of Warning .

The Postal Service is directed to compensate the Grievant, G . H .

Baird, Jr . for the pay he lost as a result of the seven day

suspension .

16

Page 17: lij - National Association of Letter Carriersmseries.nalc.org/c17674.pdfIn addition to the above, the following elements of your past record were considered in taking the action: 1

~ REQUEST FOR DISCIPLINARY ACTION

SSN: 084- 30-4488 _FULL NAME OF EMPLOYEE : G : _ H, BAIRD _ _______

DUTY STATION ' ST. AUGUSTINE

POSITION TITLE Full Time Carrier LEVEL: PS 5

PAY LOG: 100 OFF DAYS: ROTATE SCHED :7:75-16 :25

TOUR: ~- -

NATURE OF OFFENSE : IMPROPER CONDUCT/ DISRESPECT TO SUPERVISOR

REASON FOR REQUESTING ACTION ( GIVE FULL DETAILS WHO - WHAT- WHEN - WHERE

WHERE, WHY)' DISRESPECTF ULNESS TOWARDS SUPERVISOR MR . RSENAUL.IMMEDIATELY AFTER

LEAVING THE ROOM MR. BAIRD STATED LOUDLY TO MR ARSENAULT"YOU AIN 'T NOTHING,

YOU DON 'T TELL ME WHAT TO DO ," AND ALSO SAID TO THE O . I.C. 'HE AIN 'T NOTHING ."

MR. WINTERS REPLIED HE 'S YOUR SUPERVISOR .

EMPLOYEE'S EXPLANATION OR REPLY (ATTACH EMPLOYEE ' S WRITTEN STATEMENT

IF APPROPRIATE ) . THIS SECTION MUST BE COMPLETED OR SHOW REASON WHY NOT:

DISRUPTIVE MR. AL THREATENED ME, AND

DURING TOLDME WAS N

FINDINGMR .

BAIRD STATEDI WASN'T ATTACHED)

D

NAMES OF WITNESSES (ATTACH WRITTEN STATEMENT HORrCOMMENTSS I FAP~OPRRSE

IF THERE ARE NO WITNESSES , SO STATE) :

SEE ATTACHED STATEMENTS

SUMMARY AND RECOMMENDATION : IMPROPER CONDUCT / DISRESPEST TO A SUPERVISOR

RECOMMENDATION : DUE TO PROGRESSIVE DISCIPLINba. 7 DAY SUSPENSION IS WARRENTED .

RECOMMENDATIO LETTER OF WARNINSIGNATUE OF SUPERVISOR REQUES NIAME

(PRION :GEOR R. ARSENAULTSSN: 004-54-2771

JOB TITLE : 204B CUSTOMER SERVICE

DUTY STATION /TOUR: ST. AUGUSTINE, FL 32084DATE: iii>ri

I HAVE REVIEWED AND C THI&RE UESTED ACTION :{~ iE4h- TITLE :~

DATE :