*********************IN THE MATTER OF THE ARBITRATION

Between

UNITED STATES POSTAL SERVICE

And

NATIONAL ASSOCIATION OF LETTER CARRIERSBranch 2088

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

* REGULAR ARBITRATION** Case No. S4N-I-D-3658** Grievant :* Randal H .Ball** Hearing : Sept .12, 1985* Location: Winter Haven,* Florida* Arbitrator :* P. M. Williams

A Roy D. Phillips, Labor Relations Representative, PostOffice Ta a Fl for the EMPLOYERr , r

Robert M. Harkinson, Regional Administrative Assistant,N 1 )Q$j for the UNION.

1UN G~L~C1QWAYNE E WHITE NBA

DECISION AND AWARD

ATl ANTA

On February 5, 1985, a Notice of Removal (Notice) was issued forthe grievant. He received it on February 11th. In pertinent part theNotice (which essentially was a verbatim quote of a Postal Inspector'sInvestigative Memorandum dated January 15, 1985) stated as follows :

"*** You are hereby notified that you will be removed from the PostalService on March 12, 1985 .

"The reasons for this removal action are as follows :

"Unsatisfactory Performance - Conduct Unbecoming of A Postal Employee :

"1 . On December 22, 1984, an incident took place between you and apostal customer . This incident was witnessed by this customer's par-ents . The customer's parents are T and J K, (initials), who reside at(address) . Their son, DK lives behind their resident (sic) at(address) . All four individuals who were there were interviewed. Theincident will be described as it was presented to me by, PostalInspector CMR's report . (The Memorandum stated, 'by TK, JK and DK' .)Only minor discrepancies were disclosed during the inspector's report,(The Memorandum stated, 'during the interview with Carrier B .') andthese will be enumerated after the description of the incident .

'2. DK's dog had been operated on recently and was taken out for sun.DK had stayed with the dog and was well aware of the lease (sic) lawthat was in effect in Winter Haven . He stepped into the back door ofhis parents' resident (sic), leaving the dog in the driveway . A ques-tion was then asked concerning the Christmas dinner, and he did notimmediately return to the dog . JK was at the window and observed thedog seated in the driveway. The dog then barked at you across thestreet . The dog did not rise and was not headed toward you. He re-mained seated in the driveway. The dog barks when anyone is around thehouse. The next thing she saw, you ran across the street and ran upthe driveway swinging your mail sack . The dog began to bark as you rantoward him. You were shouting loudly as you ran . Mrs . K's son andhusband went out to see what was going on ."

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"3. As DK came out of the house he saw you swinging your bag, attempt-ing to hit his dog . The dog was cowed (sic) and attempting to getaway, but you were still screaming and chasing him .

"4 . As DK came out of the house he yelled 'Stop' several times, atwhich time you turned toward DK and ran up to him and pushed him in thechest with your fist stating, 'I'm just this close to kicking the shitout of you .' You pushed D a second time in the chest, making him gobackwards several steps . Mr. TK was then trying to get between you twoyounger men and separate you . At that time you stated, ' When I'm offduty, I'll catch you downtown and beat the shit out of you .' Mrs. Kcame out and was standing on the back steps. As you went down to thestreet, and got to the curb and in the street, you turned and shouted,'Asshole -- son of a bitch, I'll get you .' Next, you appeared to makea delivery and came back across a vacant lot at which time you turnedtoward them and shouted, 'You are an asshole.' at the top of yourlungs .

"5 . The dogs stitches had broken and he was being taken back to thevet by DK. Mr. K saw you about a block or so away and stopped the carand said, 'You want to come see what you did to my dog?' at which timeyou stated, 'I don't care what happened to your dog ; he can't bark atme.'

"6 . You were also interviewed by the Inspector, and told essentiallythe same story . The differences are that you stated you were acrossthe street with no mail to deliver to that area when the dog startedgrowling at you . The dog then came down the driveway toward you . Youstated that you stopped and checked your bag but had no dog spray . Youthen took off the bag and shouted at the dog and ran across the streettoward the dog, at which time the dog ran . You continued to holler andswing your bag at the dog . You stated at this time the young man cameout and said not to hit the dog . You stated the young man had his fistclenched at his side . You stated because you were so excited from theflow of adrenalin that you stormed right up into the young man's faceand told him to back off or you would hurt him and his body . You thennoticed that the father and mother had come outside, and they were hol-lering to get back and not start a fight . You stated that you thenbacked up and cursed at the mother and father . You finally got undercontrol and left the kid and went back to the street . When you got tothe street, you said that the young man said something to you so youcalled him every name you could think of . You stated that when youwent back across the street you were still very upset and shouted ob-scenities from across the street at them . You stated that you did notremember pushing the young man in the chest but did put your arm outtoward the young man's chest, and you thought that the young man hadpushed on your arm that you had extended in front of his chest butweren't sure . You acknowledged that you did make the statement that,'You would find him when you were off duty and beat his ass .'

"7 . You stated that you felt that they were breaking a city ordinanceby having the dog outside . Because of this, when the dog barked youfelt that you were going to be attacked. You stated that the adrenalinstarted flowing, and it was either run or fight ; and you got very, verymad. When the dog ran as you chased him, the young man cane out andyou transferred your hostility from the dog to the young man, and atthat moment you stated you were ready to do whatever was needed . Youdid acknowledge that you told the young man that you would hurt him,and if the young man had made any overt moves you felt that you wouldhave severely beaten the young man ."

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"8. You requested the following quote be entered in any report prepar-ed concerning this incident . You stated that : 'I feel that I havefailed to live up to my standard as to God, but I acted in an under-standable way concerning this circumstance .'

"9 . Mrs . K summed up the separate statements from her family best whenshe indicated that what frightened her the most about this incident wasthe fact that you would leave your line of travel, cross a street, andrun up a driveway just because a dog barked at you once ; then makethreats for several minutes, and after being separated by her husband,remain in the yard screaming obscenities . She felt that this was not areasonable reaction to the situation and was very frightened that some-one could be badly injured . She stated that neither she nor her hus-band really wanted to cause any problems, but felt like it was theircivic duty to report this to the post office for some type of correc-tive action because if instances like this continued with you, as theirmailman, someone would be hurt .

"Employees are required to discharge their assigned duties conscien-tiously and effectively . Employees are expected to conduct themselvesduring and outside of their work hours in a manner which reflects fav-orably upon the Postal Service . Your actions are inconsistent withParts 666 .1, 666 .2 and 661 .3 of the Employee and Labor Relations Manualand cannot be condoned .

"You have the right . . .

"CRB"Supervisor, Mails & Delivery"

At the hearing the principal parties appeared, including the grie-vant. Each was afforded the opportunity to present all such relevantand material evidence as each deemed appropriate under the circumstan-ces. Each cross-examined the witnesses of the other . It was stipulat-ed that the grievance-arbitration procedure of the National Agreement(NA) had been followed and that the grievance was properly before theundersigned for the purpose of his rendering an award .

After preliminary matters had been agreed upon and certain jointexhibits made a part of the record the Employer made its opening state-ment . At the conclusion of that statement the Union put into therecord the following, which was handwritten :

"Mr. Arbitrator the Union desires to make a motion to dismiss thecharges, sustain the grievance, grant the corrective action requestedon the Step 2 Form .

"The basis for this notion is as follows :

"A - Failure of the employer to provide requested documents and respondto specific questions .

"Discussion of this follows :

"Requests in writing were made 2/11, 2/21, Step 2 Appeal 3/5 .

"On 2/11 because of the wide differences that appeared between whatthe Inspector wrote and the Steward learned interviewing the familyinvolved he requested that the notes for the report of 1/15, plus acopy of all his reports to mgt ."

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"On 2/21 he requested the inspector's records again, Request fordiscipline (278E) Form 2608 Summary of Step 1 .

"Step 2 Appeal again Inspector's records used to write his Mem,-randum, Form 2608, Inspector's report and records of second interviewwith family after the discipline was issued .

"3/5 Again requested 2608, all notes from second interview with fam-ily by Insp. and B .

"In addition to records the following was asked 2/21 -"DO you have authority to settle this .Can you give fair decision or must you turn us over to someoneelse.Request for discipline (In Tampa SIC that is Form 278E) whoinitiated this action .Was it your decision to involve Inspection Service and not talkto grievant about this? or did it cone from higher level .

"The only records given to Union was 2608 after Step 2 and thequestions have never been answered . The Union has not received thecover letter from the Insp . Memo.

"B . Postal Inspector and Supr. B took Steward Step 1 papers, copiedthem, then went back to family on 2/27 for the Inspectors second inter-view.

"Discussion."Mr. Arbitrator, the employer mist have all the evidence prior to

issuing the discipline. This was after Step 1 .

"C . Refusal to disclose form 278E to the Union prior to Step 1 is afatal error because form contains place for name of concurring higherofficial . Article 16 Section 8 requires this . Union can only concludethat discipline was not concurred in, or was requested by other thansupervisor since form has been refused. Further we do not want it row,as it is suspect .

"D . Issue of Timeliness raised at Step 1"Discussion - Incident 12/22/84

Removal Notice 2/11/85Effective 3/12/85

"Inspector interviewed family 1/8/85. or 17 days after 12/22 .

"E . Grievant terminated for conduct unbecoming ."Discussion - Incident 12/22/84 - he continued to work, same job,

until 3/12/85 almost 3 months then removed .

"F . No investigation by Supr or PM prior to issuing removal ."Discussion - No management person interviewed family involved or

the grievant prior to issuing discipline -- Violation of just cause and115 M39 . Reliance was totally upon 100% hearsay Insp . Memo.

"The Union submits these procedural violations are each one by itselfsufficient to sustain this grievance . We further submit that it is toolate now to receive the requested records, the responses to the ques-tions or anything else in this area . Any record furnished at this latedate is highly suspect and that applies also to the responses thatshould have been made on the spot.

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"We further submit these errors are fatal and request that this grie-vance be sustained as Article 15 Section 2 Step 2 is clear regardingfull disclosure and the Union is required both contractually and legal-ly to fairly represent employees in the bargaining unit. The employercannot diminish or eliminate that responsibility by failing to furnishrelevant and necessary records among other considerations .

"The Union does rot want these records now and does not want a continu-ance for reasons stated before ."

POSITION OF THE PARTIES :

United States Postal Service :The Employer contended the grievant's conduct on December 22, 1984

warranted his summary discharge . It said it was a public oriented bus-iness supplying a service to the general public which could not toler-ate conduct such as was displayed by him. It asked that the grievancebe denied.

National Association of Letter Carriers :The Union claimed the grievant's removal was obviously punitive

and wholly without just cause . It said the incident would not havearisen but the fact that DK violated the local leash laws and had comerunning from his parents home yelling not to hit the dog, using obscen-ities in the process, and charging up to the grievant in a very threat-ening manner with his fists clenched . It conceded the grievant's re-action was to use the same bad language as that used by DK, which wasimproper, but it also said the prevailing circumstances excused hisoutburst .

The Union also claimed the procedural objections raised by itsNbtion (above quoted) warranted the sustaining of the grievance. Ittherefore asked that the grievance be sustained and the grievant rein-stated and made whole for all earnings and fringe benefits lost, withinterest .

ISSUE : Was the removal of the grievant for just cause and in accord-ance with the terms of the NA and applicable rules and regulations andif not, what is the proper remedy?

OPINION :

Because the Union indicated it "***does not want these records nowand does not want a continuance for reasons stated before .", the under-signed does not believe it necessary to discuss each issue raised by itregarding documents and/or records which were not received during theprocessing of the grievance . Rather he will limit his discussion tothe requests that were ignored and which tend to indicate it may havebeen hindered in its efforts to meet its duty of adequately investigat-ing the incident for purposes of resolving whether the Employer's alle-gations were more likely to be correct than incorrect .

He hastens to add he is persuaded the Employer's allegations onseveral material matters tend to be more incorrect than correct . Andhe is also persuaded that had local officials promptly investigated theincident on their own, (rather than waiting for a Postal Inspector toarrive on the scene and issue an Investigative Memo at a tine when theHoliday Season was in full swing) the dilemma created by the grievantdisplaying improper conduct to a customer might have been more prac-tically resolved . More will be said about this later.

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it has been previously noted the exact content of the Inspector'sInvestigative Memorandum (Memo) was used by Supervisor CRB (CRB) as thespecifications to support the charge of "Unsatisfactory Performance" onthe grievant ' s part . The Memo says that DK, his father and mother, andthe grievant were present and that all four were interviewed . It wasnot said however that each person was interviewed at a different timeand place from each of the others , or that a female companion was ac-companying DK when he last encountered the grievant , or whether writtenstatements were taken from anyone .

The Inspector testified at the hearing . It was his testimony thathe interviewed each of the four persons at different times and places,but he did not take a written statement from anyone . He said he tooknotes and later prepared the Memo based on his recollections of whathad been said and what he had put in the notes . He made no mention ofDK's ever having a female companion present during the course of theencounters with the grievant . He said he advised the Postmaster (PM)that he was unwilling to make a copy of his notes of the interviewsavailable to the Union but that if the PM asked for it he would providea Memorandum of Interview as to each witness . The PM had advised himthat was not necessary , consequently none were prepared . He furthersaid he was asked by the PM to contact the father and mother a secondtime and that he did so , accompanied by CRB . He said at this secondmeeting , the date of which he could not remember ( neither could CRBwhen he testified ), he either showed his Memo to them or he read it tothem, and both agreed it correctly described what had happened onDecember 22nd . "(The record shows the second meeting occurred in lateFebruary after the Notice of Removal had been issued and received, andafter the grievant had provided the Employer with additions and correc-tions to it .) He said because the parents of DK agreed that the eventsdescribed in the Memo were correct in every detail he took no notes ofwhat occurred at the second meeting .

The Union steward interviewed DK's parents on February 15, 1985and again on the 21st . On March 12th they were present for about anhour and a half at the Step 2 hearing conducted by the PM . They gave awritten statement there which altered significantly what had been saidconcerning the grievant ' s and the dog ' s original location , the former'sline of travel , and also where the dog was and what it did as he ap-proached it . Moreover, their statement indicated the grievant nevercursed at them , rather only at their son, DK .

The undersigned is of the opinion that because the Union had re-quested the Inspector ' s notes of the interviews the PM should have ask-ed that the former provide the Memoranda of Interview he indicated awillingness to prepare . Had such memoranda been prepared it seems tohim that not only would the PM have been able to comply what was a pro-per request on the Union's part , but more importantly he would havebeen able to determine that DK ' s version of what had happened did notcomport to the grievant ' s description of it (which was to be expected),and it also did not jibe with what his parents said had happened . Itseems to him had the PM known of that significant variance it is quitelikely that the result in either Step 1 or Step 2 would have been dif-ferent .

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More will be said about the latter point below; first however itshould be said that while the undersigned believes the Memoranda ofInterview should have been prepared and made available to the Unionhe does not also believe the Employer should be sanctioned to the pointof having its disciplinary action wholly overturned because such wasnot done . He says this because he believes at the Step 1 meeting theUnion probably was able to tract from the information then available toit the fact that DK ' s comments to the Inspector were either an exagger-ation of what happened or untruths about material matters of the inci-dent. Moreover , having this insight he believes it thus had sufficientknowledge to prepare itself to adequately defend the grievant through-out the grievance procedure , which includes the arbitration proceeding .He quickly notes however his opinion is based on the circumstances ofthis record and that he may have formed a different one had the factsnot been as they are . He further believes there is no question butthat the Union had a right to request the information and that itshould have been made available .

Other facets of the Union ' s motion were the lack of receipt of theForms 2608 and 278E . The former is the summary of the Step 1 hearing .It is prepared by the supervisor who conducts that hearing . It is, orso it seems to the undersigned , a management information form whichsummarizes what occurred at Step 1 . It hardly needs noting that theUnion's representative was present at Step 1 and was therefore acutelyaware of what transpired there . Under such circumstances the under-signed is unable to understand why the Union would have an urgent needto read the Employer ' s summary of what happened in order to be able toadequately represent the grievant at the next Step . It seems to him inthe absence of a requirement that the Step 1 decision be in writing heis constrained to find that the request for the Form 2608 is not welltaken , in which case the Employer should not be faulted for not makingit available to the Union .

The Form 278E in this District is used to request disciplinary ac-tion . It lists the person requesting the action as well as the personwho later concurs in its issuance . It is a management tool to recordthe person or persons responsible for initiating disciplinary actionand it discloses whether concurrence is given and by whom . It is thebest documentary evidence that a concurring opinion has been given, andit also tends to identify , in a negative manner, the person who may notbe the Employer ' s hearing official at Step 2 or Step 3 . (That officialmay not be the one who initiated the request .)

In this instance the steward asked who was responsible for initia-ting the removal . He was told CRB initiated it and that the PM hadconcurred. Apparently he was not satisfied with that answer . He askedfor proof in the form of the Form 278E . The form was not provided .The Union now asks for sanctions against the Employer for failing toprovide it . The undersigned does not believe its contention of erroron the Employer ' s part has particular significance to this case becausehe is not persuaded the failure to provide the Form 278E was harmful toits defense of the grievant . It seems to him that while the provisionsof Article 15, Section 2 Step 2 , and Article 31 (which the Union relieson here to support its position ) direct that the Employer is to readilyfurnish information and documents of relevancy upon request of theUnion in proceedings such as this , those provisions do not also implythe Union is necessarily to be deemed harmed in the event the Employer

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declines to furnish requested documentary evidence that is outside thescope of the discovery process, which he believes is the circumstanceof the Form 278E . Stated differently, it seems to him that while theUnion had a right to disbelieve the Employer's claim that CRS initiatedthe grievant's removal and that the PM concurred in the action, itnevertheless was not in a position to demand documentary proof that itwas being told the truth about that very important fact . Such beingtrue it necessarily follows that the failure to provide the Form 278Ehas no meaning unless it is also found, and it is not, that the Employ-er misinformed the steward of who was responsible for the removal ac-tion, i.e, who recommended it and who concurred in it .

Another procedural issue raised by the Union was the Employer'salleged violation of §115 of the M-39 Handbook because no interview ofthe grievant occurred before the Notice of Removal was issued . Itclaimed the failure to interview him and get his side of the story fa-tally flawed the removal action .

It seems to the undersigned the thrust of the Union's urging isthat he find that Employer's instruction to its supervisory personnel,i .e ., §115 of the M-39 Handbook, is to be likened to the prescribedcourse of conduct required of employees insofar as work and behavioralpatterns are concerned . While he finds this a novel perception in arather complex issue, he nevertheless is obliged to also find that inthe absence of more support that that analysis was the intent of theparties at the National Level in situations such as this, he is notinclined to sally out and make a finding that §115 places such a burdenon the Employer . He will therefore find the Employer may rely on anInspector's Investigative Memo for purposes of its issuing a removalnotice and that it need not, despite the fact that such might be thebetter course from a practical standpoint, have its supervisory peopleinterview a grievant before it may impose discipline .

Having discussed what he perceives are the essential elements ofthe procedural issues raised by the Union he will now discuss what heviews are the salient facts relating to the merits of the case .

He begins by noting that no one disclosed at the hearing who, ifanyone, in the K family was responsible for making the Employer aware.of the alleged incident . Moreover, only TK, the father, testified atthe hearing . He did not say he had called either CRS or the PM, orthat his wife or DK had .

The PM testified that a letter carrier had passed his house as hewas mowing his lawn on saturday, December 22nd, and had made him awarethat an incident had occurred . He did not say, nor did CRS, that any-one from the K family had called him or had come to the Post Office tosee him about it . He also stated that on nonday, the 26th, he contact-ed the Postal Inspection Service and asked for an investigation .

The grievant testified that he advised DK of his supervisor'sname, CRB, giving him also the telephone number of the Post Office . Itwould seem therefore that DK might have contacted CRB on the 22nd be-cause CRB testified that on the 22nd he was concerned that an assault

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had occurred and he immediately called the Postal Inspection Service inTampa and asked that it investigate the incident . It would also seemhowever that the father might have reported the incident to CM becauseit was to him the Postal Inspector went first when he arrived on thescene January 8, 1985 . The Inspector said he learned how to reach DKfrom the father . He did not say how he learned of TK's work place, butit could have been from the report made to CM . In all events however,no matter who in the K family was responsible for contacting CRB, ifindeed anyone of them did, the record is clear that the factual des-cription of what allegedly occurred immediately prior to and as DK andthe grievant began their encounter, necessarily was based on DK's viewof what had happened because all parties agree that DK came out of hisparents' home and confronted the grievant several moments before thefather arrived, and it was longer before the mother was there . Itseems reasonable to conclude therefore that DK told his parents andalso the Inspector that he had been struck by the grievant . Moreover,the conclusion is inescapable that the parents supported him in thatclaim by advising the Inspector that the Investigative Memo was correctin all respects .

For emphasis, perhaps it needs repeating at this point that boththe father and the mother recanted their earlier agreement with theInspector's Memo that the grievant crossed the street to engage thedog. They did likewise concerning the dog's original location and itsmovements as he approached it . That being true it also is to be empha-sized that Mrs . K's summary conclusion, as set forth in ¶9 of the Memo(See page 3 hereof), at the very least must likewise be adjusted to re-flect that recantation . The significance of this will be briefly men-tioned later .

The father testified he did not see the grievant touch his son andneither did he physically separate them. Rather, in an effort to de-fuse the situation and quieten his son he stepped between them (he saidthey were a step apart at the time) and at the same time indicating tohis son that he should "shut-up" . He further said that as one manwould curse the other, the other would repeat back the curse words . Hesaid the grievant turned to walk away and cross the street and as hedid so the son shouted something after him . A quick retort came back .He said he could not recall who said what to whom thereafter . Neitherwas he able to recall whether his son's comments in the last stages ofthe incident were profane or vulgar . He was quite clear however thatthe grievant's cursing was not directed at his wife or to him .

The grievant testified his line of travel on that segment of hisroute placed him on the side of the street of the homes of the Kfamily. He said after his most recent delivery as he was fingeringmail to see if he had any for either the garage apartment (which was onthe back portion of lot of the father and mother) or for DK's residence(which was owned by the father and mother and located on the lot adja-cent to theirs), his attention was attracted by a dog growling . Hesaid he looked and discovered a dog getting up and coming tacard himfrom the far side of the K's driveway . The dog bared his teeth as hecame forward. He searched the satchel . No dog spray was in it . Hetook a few quick steps toward the dog, yelling "Get out of here!",dropping the satchel down onto his forearm as he did . The dog stoppedand backed, so he stopped, too . He took a few more steps down thestreet. The dog began barking and again advanced toward him . He was

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in the orocess of repeating his quick stepping motion and shouting atthe dog in an effort to make it back off again when DK burst throughthe door yelling, "Don't you hit m3 dog you son of a bitch! Ass-hole!" .DK ran at him, stopping right in front of his face, with fists clench-ed, still using vulgarity . He yelled at DK, "Get away . You are closeto having the crap beat out of you ."

About then the father came out, shouting to his son, "Stop it!Cool it! Shut up!", or, per the father, words of that sort . The fatherstepped between them and after another epithet or two was exchanged,which included the grievant saying something to the effect, "If I catchyou downtown, I'll beat the shit out of you .", the grievant turned andwalked across the street to begin delivering mail . As he did so DKcontinued yelling at him. He delivered the mail to the first house onthe opposite side of the street . As he was walking to the next deliv-ery point, which put him near DK again, DK shouted, "You ass-hole .",and he reciprocated in kind, but continued with his duties . After hehad gone about six blocks DK and a female companion drove up to him,with DK asking, "Do you want to see what you did to m3 dog?" The com-panion made a few snide remarks about how "cute he was in his shortpants .", however nothing more significant happened then .

The grievant said he did not touch DK but that DK touched him bytrying to knock his hand away after he had it raised to fend off whathe thought was going to be a frontal assault by DK. He also said thatbecause of DK's continued haranguing of him after DK's dog had attackedhim he had over re-acted to the happenings of the rroment . He said too,it was bad enough for a dog owner to violate the leash law and allow adog to be in a position to attack him, but it was totally unreasonablefor that owner to assault him after he was merely defending himselffrom the dog. He also said he never struck the dog with his satchel .

The undersigned found the grievant to be a straightforward andvery credible witness . He is unable to say the same for the father ofDK, whom he thought was unnecessarily protective of DK's violent beha-vior. Moreover, the father misstated the import of the local leashlaws and apparently was of the opinion DK had no responsibility for theincident . Perhaps the latter was because he was unaware of DK's firstremarks to the grievant and the belligerency he showed when he came outof the father's house . The undersigned has the nagging notion that DKnever truthfully told the father what had started the incident, and hadhe, the father would not have supported him to the extent that both heand the mother did in their description of the events to the Inspector .

The undersigned also believes that CRB was not entirely candidwhen he testified he wanted to give the grievant the benefit of thedoubt in the matter. It seems to him that if that were true, at a min-imum CRB would have asked the grievant to explain what had happened,but he did not . Moreover, CRB said he had called the Postal Inspec-tors' office in Tampa on the 22nd, whereas the PM said he called it onthe 26th. The Inspector said he was advised the call came in on the26th .

There is no question from this record but that the grievant engag-ed in a "cuss-fight" with a customer. The question is: does that factserve as just cause for his removal, or do the circumstances here --some already discussed and some not -- tend to mitigate such a harshpenalty? The undersigned is of the opinion they do . He will briefly

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explain why he reaches this conclusion lest someone think he does notagree that such a "cuss-fight" is "unsatisfactory performance - conductunbecoming a Postal employee" . It is, there is no question about that .But it is to be quickly added, provocation is a consideration thatnecessarily comes within the concept of just cause, which is the testto be applied here . It is not inappropriate therefore that the total-ity of the situation be reviewed for purposes of determining whetherthe grievant's reaction to what was happening to him was reasonable,unreasonable, or part one and part the other .

First it seems important that the non-parochial reader be madeaware of the fact that in this region one does not call another a "son-of-a-bitch" without also being ready to fight . Whether DK is a nativeis not known, however it is his experience that even if DK were a new-comer his father, or co-workers or friends would have passed the wordto him that in this area one does not facetiously call a stranger a"son-of-a-bitch" . The reason the term is not directed to a stranger isbecause it is almost universally viewed as an attack upon the characterof the recipient's mother . Consequently, until it is known whether astranger will fight for purposes of proving he revers his mother, it isunwise to expect the term will be accepted as nothing more than a pro-fane expression made to gain attention .

The undersigned believes the grievant told the truth about whathappened when DK burst out the door . He also believes that DK precipi-tated the incident through his choice of words and the attitude hedisplayed. He further believes the'grievant had a right to think hewas faced with a choice of either reciprocating in kind and perhapsavoiding more of a confrontation, or standing quiet and perhaps beingstruck. However, the situation imnedidately changed when the fatherappeared and demanded that the incident be put to an end. When thathappened the grievant erred in continuing to want to have the lastword. He should have broken off the tirade, and gone about his duty ofdelivering mail . He is to be severely faulted for not doing so, andthis is true even though he had suffered through 2 incidents ofpotentially damaging dog attacks and was being verbally abused by dog'sowner. The matter was at an end and he should have known when to quitit.

Earlier it was noted that more would be said about the mother andfather having recanted some of what they obviously had reported to theInspector as having happened . In view of the recantations and it alsobeing found the grievant did not strike DK, nor attempt to hit the dog,rather the satchel was used as protection against the dog as directedby safety policy of the Winter Haven Post Office, the undersigned ispersuaded that other than for the grievant's use of profanity most ofthe essential charges set forth in 1['s 2, 3, 4, and 9 of the Memo haveeither not been proved, or such are to be resolved in the grievant'sfavor.

At the hearing the PM was asked why, in view of the lapse of timebetween the incident and the date of removal (approximately 10 weeks),and with the grievant being allowed to continue carrying the route, wasremoval deemed the only remedy available to correct the problem . (Thegrievant was a T-6, who carried the route 1 day/week .) The PM describ-ed three events, none of which had resulted in discipline, wherein hesaid he believed the grievant had demonstrated an improper attitude

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toward customers . One of the events included a situation where, afterthe grievant had refused to allow a customer to take mail from anapartment box which he was loading because she did rot have a key, hewas physically attacked by the customer when he closed the box withoutletting her take the mail from her alleged slot . (The record showsthat criminal charges were filed against the person and she was foundguilty of assaulting him.)

The PM indicated he believed the grievant had not properly handledthe last descrbed situation, although he agreed he did not see fit tomake his feelings known -- by way of a discussion or discipline -- atthe time. Rather he refused the grievant's request for legal counselat the trial. Later he approved a claim for payment of legal feesafter the woman had been found guilty of the assualt .

Without specifically making a finding one way or the other, be-cause he is not called upon to do so here, the undersigned neverthelessis obliged to say he believes the quid pro quo for the Employer's rightto suspend and remove employees under Article 16, Section 6, is theemployee's right to be wholly exonerated in the event he or she isalleged to have inproperly treated treated a customer and civil author-ity rules against the customer . Obviously, philosophically speaking,the PM does not agree with that point of view. He need not. Rather,he should merely avoid having irrelevant matters color his judgmentwhen to do so also tends to make it appear (as it does here) that thedisciplinary action to which he gave his concurrence might have notepunitive overtones that it does corrective ones .

Lastly, and again without making a specific finding, acts of anis-sion as well as commission are often used to demonstrate the state ofmind of a person or persons required to perform under defined condi-tions . In this case both CRB and the PM indicated they delayed takingaction against the grievant because each wished to "give him the bene-fit of the doubt ." However, the record is clear that neither officialseemed to want to get to the bottom of what had happened because nei-ther contacted, before the Notice was issued, anyone in he K family orthe grievant. Moreover, the latter was allowed to continue deliveringmail to DK and to the garage apartment behind the K's residence (theK's were not on his route) despite Mrs . K having indicated to theInspector she was afraid that if the grievant continued on the routesomeone would be hurt . (119) . He finds the fact of continued deliverymitigating in and of itself because it tends to show that neither CRBnor the PM were seriously concerned that Mrs . K's fears might be wellfounded. It seems to him that under the circumstances CRB & the PMmust have originally thought that some discipline other than removalwas preferable and that it would correct the situation .

In sum, the undersigned is persuaded, and so finds, that justcause did not exist for the grievant's removal . He does find howeverthat the grievant's conduct on December 22, 1984 was unbecoming a pos-tal employee and that as a result a severe disciplinary penalty shouldhave been imposed . The penalty of discharge however is deemed too se-vere for the infraction to which he is found guilty, i .e., continuingto engage in a "cuss-fight" with a customer after the circumstances nolonger warranted such a course of conduct . The removal action willtherefore be reduced to a suspension of 30 work days and the grievantshall be admonished that any subsequent major breach of the Employer'sdisciplinary rules shall, at the option of the Employer, be cause forhis immediate discharge .

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On the basis of the entire record in this case which includes apost hearing brief from each of the parties the undersigned makes thefollowing

AWARD

The grievance is sustained in part and denied in part in accord-ance with the opinion expressed above . Just cause did not exist forthe grievant's removal, however just cause did exist for him to besuspended for 30 work days as a result of his continuing to engage in a"cuss-fight with a customer" when it was no longer necessary that hepersue what is deemed as a proper method for protecting himself againstan unwarranted attack upon his person by the customer. Accordingly theremoval notice will be reduced to a suspension of 30 work days . Thegrievant shall be admonished that any future major breach of theEmployer's disciplinary rules shall subject him to possible discharge .He shall be made whole for all earnings lost after implementation ofthe 30 work day suspension . He shall be returned to his former posi-tion within 7 days of the date of this award . His return to work shallbe without loss of seniority or fringe benefits, including accrual ofsick leave and vacation benefits . All payments due shall be paid notlater than the second pay period after the date of this award .

P. M. WilliamsArbitrator

Dated at Oklahoma City, Oklahomathis 29th day of October, 1985 .

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