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REGULAR ARBITRATION OPINION AND AWARD-----------------------------------------------------In the Matter of the Arbitration

between the

)()()()()(

Grievant: William A. Tuggle III

Post Office: Eagle Creek Post Office(Indianapolis), IN

UNITED STATES POSTAL SERVICE

and the

NATIONAL ASSOCIATION OFLETTER CARRIERS, AFL-CIO

USPS Case No.: JOIN-4J-D 03156]29NALC DRT No.: 06-0420]6

-----------------------------------------------------BEFORE: Clarence R. Deitsch, ArbitratorAPPEARANCES:For the U.S. Postal Service: Ms. Shelly Koontz

A/Labor Relations SpecialistIndianapolis, IN 46298-9401

For the Union: Mr. Paul A. TomsPresident, Branch 39National Association of Letter CarriersIndianapolis, IN 46220

Place of Hearing: United States Post Office Administration Building3939 Vincennes RoadIndianapolis, IN 46298-9401

Date of Hearing: December 4, 2003

Date of Award December 19, 2003

Articles 16, 19 and 29; ELM Section 831.332; M-41 HANDBOOK,Sections 811.11 and 811.12; EL-80 I HANDBOOK, Section 3-5. I ;and EL-814 HANDBOOK, Section X.A. Licenses.

Relevant Contract Provisions:

Type of Grievance: Discipline

Contract Year 2001-2006

Award Summary:Whether there was just cause for removal? If not, what should the remedy be? The Postal Serviceestablished a prima facie case for removal. Procedural due-process problems and mitigatingcircumstances, however, fatally flawed the removal.

Award: GRIEVANCE SUSTAINED IN PART/ DISCIPLINE MODIFIED

A,arence R. Dei~ Ar itrator

[ffi[g@[gD\Y7@~,WERECEIVED

DEC 2 !) 2003 DEe 22 2003VICE ~~~~~ENT' S

JAMES KOROLOWICZNALC HEADQUARTERS

REMOVAL FOR OPERATING A POSTAL VEHICLE WITHOUTA VALID DRIVER'S LICENSE

The Issues

DEITSCH, Arbitrator-Whether the Notice of Removal, dated May 16, 2003, issued the

Grievant, William A. Tuggle III, for "Operating A Postal Vehicle Without A Valid Driver's

License" was for just cause? If not, what should the remedy be?

Stipulated Evidence (Joint Exhibits)

I. Joint Exhibit #1: The 2001-2006 National Agreement between the United States Postal

Service and the National Association of Letter Carriers. AFL-CIO.

2.

3.

Joint Exhibit #2: Request For Arbitration.

Joint Exhibit #3: Union Presentation at Formal A.

4. Joint Exhibit #4: Employer Presentation at Formal A.

Relevant Contract Provisions

ARTICLE 16

DISCIPLINE PROCEDURE

Section 1. Principle

In the administration of this Article, a basic principle shall be that discipline shouldbe corrective in nature, rather than punitive. No employee may be disciplined ordischarged except for just cause such as, but not limited to, insubordination,pilferage, intoxication (drugs or alcohol), incompetence, failure to perfonn workas requested, violation of the terms of this Agreement, or failure to observe safetyrules and regulations. Any such discipline or discharge shall be subject to thegrievance-arbitration procedure provided for in this Agreement, which could resultin reinstatement and restitution, including back pay.

[see Memo. page 285]

ARTICLE 19

HAt"ffiBOOKS At"ffi MANUALS

Those parts of all handbooks, manuals, and published regulations of the PostalService, that directly relate to wages, hours or working conditions, as they apply

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to employees covered by this Agreement, shall contain nothing that conflicts withthis Agreement, and shall be continued in effect except that the Employer shallhave the right to make changes that are.not inconsistent with this Agreement andthat are fair, reasonable, and equitable. This includes, but is not limited to, thePostal Service Manual and the F-21 Timekeeper's Instructions.

EMPLOYEE AND LABOR RELATIONS MANUAL (ElM)

831.332 Driver Responsibility

Drivers must obey all traffic laws and postal policies, drive defensively andprofessionally, and extend courtesy in all situations. Specific drivingresponsibilities are outlined in Handbook PO-70lfleet Management, in HandbookEL-80 I, Supervisor's Safety Handbook, and in Handbook EL-814, Employee Guideto Safety.

SUPERVISOR'S SAFETY (EL-801) HANDBOOK

3-5 Motor Vehicle Safety

3-5.1 Driving ResponsibilitiesDrivers are responsible for the safe operation of any vehicle they drive during theperformance of their duties. Employees driving motor vehicles - whether PostalService-owned, -leased or -rented - must have in their possession a valid statelicense (or commercial driver's license, as necessary) at all times. Postal driversare required to obey state and local vehicle laws.

POSTAL EMPLOYEE'S GUIDE TO SAFETY (EL-814) HANDBOOK

Section X,A. LicensesYou must infonn your supervisor immediately if your state driver's license isrevoked or suspended.

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Back2round and Facts

The Grievant, William A. Tuggle Ill, was a Full-Time, Regular City Letter Carrier

assigned to the Eagle Creek Branch of the Indiana Post Office at the time that he was issued the

Notice of Removal, dated May II, 2003 and received on May 23, 2003. The Grievant was a

relatively long-tenn employee with more than seventeen (17) years of service at the time of his

removal - his seniority date being January 18, 1986. At the time of the Grievant's removal,

there were no active elements of discipline in his OPF.

The vast majority of the facts in this case are not in dispute. The record of evidence

developed through the dispute resolution process indicates that the Grievant became aware that his

driver's license had been suspended when he attempted to renew it at Mary Richardson's

suggestion on October 9, 2002. When he was unable to successfully renew it, he returned to the

Post Office that same day and infonned Supervisor Darrell Jackson that he needed some additional

paperwork (and time) to resolve the snafu. Whereupon Supervisor Jackson infornled him "Not

to come back until you had it taken care of." Supervisor Larry Shaw overheard the latter

directive.

On Friday, October II, 2002, the Grievant phoned Supervisor Shaw at the supervisor's

desk and infonned him that he had yet to resolve the license renewal issue and would not be able

to report as scheduled or able to return to work until October 15, 2002. When the Grievant came

in on October 15, 2002, he spoke to Supervisor Darrell Jackson, after which he clocked in and

began his route. Supervisor Larry Shaw observed the conversation and the Grievant's clock ring

and assumed that the license issue had been satisfactorily resolved. The cmx of the instant

dispute, the Arbitrator believes, is what transpired between the Grievant and Supervisor Darrell

Jackson the morning of October 15, 2002 - what was said.

In April, 2003, Replacement Supervisor Cheryl Satterfield conducted a routine license

check for all carriers at Station Manager Mark Jarrett's direction. When she asked the Grievant

to see his license, he infonned her that he did not have a license - that it had been erroneously

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suspended at the request of Grange Insurance Company for an "unsatisfied judgement for

accident." On April 28, 2003, Station Manager Mark Jarrett conducted an investigative interview

with Grievant Tuggle. As a result of that interview as well as interviews/written statements of

other principals involved in the six (6) month sequence of events preceding the Grievant's April.

2003 admission that he did not have a valid driver's license, Supervisor Lori Kiemeyer issued the

Grievant the Notice of Removal dated May 16, 2003. It was approved (i.e., concurred with) by

Station Manager Mark Jarrett. Supervisor Kiemeyer did not conduct the primary investigation but

instead relied upon the documents and evidence generated by Station Manager Jarrett in making

her decision to tenninate the Grievant. The Grievant filed a timely grievance which was processed

through the grievance/dispute process without resolution and is now properly before this Arbitrator

for final adjudication.

Position of the Parties

The following positions were taken by the Employer and the Union, respectively, in a

hearing before the Arbitrator on Thursday, December 4, 2003 at the USPS Administration

Building, located at 3939 Vincennes Road, Indianapolis, Indiana. At this hearing, both Parties

were afforded a full opportunity to present all relevant evidence and arguments. The record of

evidence in this matter was declared closed at hearing's end.

EMPLOYER

The position of the Postal Service is simple. The Grievant, William A. Tuggle ill, has

irrevocably destroyed the faith and trust upon which Postal Service employment is based.

Operating a Postal Service vehicle without a valid license is an egregious infraction warranting

the severest of penalties. The evidence is incontrovertible that the Grievant knowingly operated

his LLV with a suspended license from October 15, 2002 through the first week of April, 2003.

Not only does the Grievant's Official 7 Year Indiana Driver Record indicate that his license was

suspended during this time period, but he freely admitted during an investigative interview

conducted by Station Manager Mark Jarrett on April 28, 2003 that he knew his license had been

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suspended and yet continued to drive an LLV for the Service during this time. His Driver Record

also indicates the Grievant to be a repeat offender as regards the charge - that discipline less

seyere than capital termination is not likely to have a rehabilitative impact on the Grievant.

Simply stated, the Grievant's history of suspensions indicates there is no reasonable expectation

that he will not revert to old habits with potentially disastrous consequences for the Service.

The Union's claim that Supervisor Jackson directed or, at minimum, acquiesced to pennit

the Grievant to carry mail upon his return to the facility on October 15, 2002 when he knew the

. Grievant did not have a valid license has no basis in fact. Why would Supervisor Jackson pennit

him to earry his route with the admonishment that he could "drive his LL V but be careful" after

sending the Grievant to renew his license the week before and telling him "not to come back until

he had it taken care of?" Much more credible is Supervisor Jackson's written statement that the

Grievant told him "it was all taken care of." In addition, the Arbitrator cannot accord the claim

any weight because it is new argument that the Postal Service only heard for the first time during

the arbitration hearing.

Similarly, the Union's argument that Supervisor Lori Kiemeyer did not conduct a thorough

. investigation but instead relied upon the evidence collected by Station Manager Mark Jarrett as

the basis for issuing the Notice of Removal is not convincing. Supervisor Kiemeyer testified that

she spoke with all supervisory personnel involved except Darrell Jackson; Jackson had left his

position with the Service before Kiemeyer had arrived at Eagle Creek. Further, there is no

requirement that an investigation be duplicated or repeated; Station Manager Mark Jarrett had

already done a thorough investigation prior to Kiemeyer's arrival. Kiemeyer credibly testified that

she independently arrived at the decision to remove the Grievant - was not coerced into making

that decision. Manager Jarrett likewise convincingly testified that he properly reviewed and

concurred with Kiemeyer's decision. While circumstances may have conspired to give the

appearance of a due process error in the Service's issuance, review, and concurrence sequence in

this case, there was no substantive due-process problem.

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Finally, the Union's argument that the Grievant was disciplined in disparate fashion is

totally without foundation. The tmth of the matter is that the circumstances of the Melanie

Carnahan Removal were totally different than those in the instant case. The Union never

discharged its burden of proving "unlike treatment under like circumstances" - other than making

the assertion of disparate treatment.

For all of the foregoing reasons, the Postal Service requested the Arbitrator to deny the

grievance and to uphold the Grievant's removal. In support of its arguments and positions, the

Postal Service submitted a number of national and regular arbitration awards. These were: Case

No. NC-E-11359 (Arbitrator Benjamin Aaron, January. 1984): Case Nos. J94N-4J-D 99203553/C

99215041 (Arbitrator Linda DiLeone Klein, September 29, 1999); Case No. C98N-4C-D

00214698 (Arbitrator Harry Graham, May 18,2001); Case No. JOOV-lJ-D 03146025 (Arbitrator

Jerry A. Fullmer, November 19, 2003); Case No. D98N-4D-D 02014680 (Arbitrator Michael

Fischetti, January 14,2002); and Case No. H90N-4H-D 95040686 (Arbitrator Hutton S. Brandon,

August 2, 1995). Also cited were United States District Court For The Southern District of New

York Case 642 F. Supp. 1531, 1986 U.S. Dist. LEXIS 20583,41 FAIR EMPL. PRAC. CAS.

(BNA) 1533 a nd EEOC Case No. 05910490 ~enneth S. O'Neal. Sf. V. Frank. Postmaster

General. U.S. Postal Service, July 23, 1991). The Service also cited United States Of America

Merit Systems Protection Board Central Regional Office (Docket Nos. CH-0752-03-0686-I-l,

November 20, 2003).

UNION

The Union's case consists of a number of arguments all related to due process and

mitigating circumstances surrounding the Grievant's removal. Not necessarily in order of

importance, these arguments are treated below. First, the Grievant was denied his right to due

process by not being afforded the opportunity to confront and cross-examine his primary accuser,

Supervisor Darrell Jackson, during the grievance-dispute resolution process. Grievant Tuggle has

maintained throughout the process that Supervisor Jackson knew from October 15, 2002 that he

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was operating his LLV without a valid license - that he (the Grievant) had infonned Jackson that

he had been unable to correct Grange Insurance Co. 's error in mistakenly having the BMV

suspend his license - that Jackson was lying in his written statement when he claimed the

Grievant told him on October 15, 2002 that the license suspension "was all taken care of" but

instead telling the Grievant that he was to "drive'his LLV, but be careful." Given the Grievant's

military training and Jackson's supervisory position, the Grievant took this (maybe naively) as a

directive and behaved accordingly.

The Arbitrator will never know who was fabricating and who was telling the truth because

the Arbitrator was not given the opportunity to hear and see Supervisor Jackson due to the

Service's failure to produce this witness any time during the grievance process or arbitration

hearing. The Grievant was done a grave injustice through the Service's failure. The credibility

of this silent witness, vis-a-vis the Grievant, however, can be evaluated by the Arbitrator's taking

note that Supervisor Jackson has since been removed from the Postal Service for breach of trust

and conversion of Postal Service funds. Simply put, Supervisor Jackson has no credibility.

Nor can the foregoing be dismissed, as the Postal Service claimed during the arbitration

hearing, as new argument. That the Union/Grievant took this position from the outset of. the

grievance and throughout the dispute resolution process can be reasonably inferred from the

Grievant's answers during the investigative interview of April 28, 2003, the Grievant's written

statement of July 7, 2003, the Postal Service's Grievance Summary - Step I (P.S. Fonn 2608)

where the Union's position is given as "Daryl Jackson is lying in order to help save his own job."

and Supervisor Cheryl Satterfield's signed statement where she writes: "He said Darrell knew it."

This case also has very serious substantive "review and concurrence" (i.e., procedural)

problems. It is fatally flawed because the concurring/reviewing authority, namely, Station

Manager Mark Jarrett, was also, de facto, the issuing supervisor. Acting Supervisor Customer

Services Lori Kiemeyer was a pawn in this matter. She did not conduct her own investigation but

essentially relied on statements and evidence collected by Manager Jarrett. Most telling in this

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regard is the fact that she failed to conduct her own interview of Grievant Tuggle prior to issuing

the Notice of Removal. Also critical to the foregoing conclusion was her response during Union

Steward Ward's investigative interview to the question "Who stat1ed the process of this

grievance?" She responded "I did I guess because Mark had me sign paperwork." Clearly, the

decision was made by Station Manager Jarrett with Kiemeyer coerced/compelled to issue the

discipline. What other meaning can be attributed to the word "had" in Ms. Kiemeyer's response?

Further, while the Grievant's alleged infraction is admittedly serious, surely what

Arbitrator LeWinter labeled the "bank of good will" built up through more than seventeen (17)

years of faithful service to the Postal Service was sufficient to help underwrite/warrant

modification of capital termination. Clearly, the Postal Service failed to give the Grievant's

seniority proper weight in detennining appropriate discipline.

Next, if the Grievant's breach of trust was irrevocable as claimed by the Service, how

could the Grievant have been entrusted to carry the mail from April 21, 2003, the date that his

license suspension was lifted, through the end ofJuly, 2003, the date that his termination became

effective? Apparently, the breach of trust was not irrevocable.

Finally, the Grievant was disciplined in a disparate fashion. Another carrier, Ms. Melanie

Carnahan, was dismissed for driving without a valid license, yet was reinstated to her fonner

position. Why was the Grievant treated differently?

For all the foregoing reasons, the Union requested the Arbitrator to sustain the grievance

and to reinstate the Grievant with full back pay and benefits. In SUPPOt1of its positions and

arguments, the Union submitted two national arbitration awards. These were Case No. 194N-41-

D 96027608 (Arbitrator Carlton J. Snow, April 8, 1998) and Case No. E95R-4E-D 01027978

(Arbitrator Dana Edward Eischen, December 3, 2002).

Discussion

It is incumbent upon the Postal Service to prove the truth of the matters that it has

affinned, namely, that it had just cause to remove Grievant Tuggle for "Operating a Postal

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Vehicle Without A Valid Driver's License" and violations of various Postal Rules and Regulations

that such an infraction entails. The quantum of proof customarily required in discharge cases such

as this for the Postal Service to prove its case is "a preponderance of clear and convincing

evidence." This standard will be used to resolve the instant dispute. The burden of proof then

shifts to the Union to show that there were mitigating/extenuating circumstances or procedural

problems surrounding the disciplinary action. The standard of proof necessary for the Union to

carry its cases in these areas is a "simple preponderance of the evidence." It will be presumed

that the Postal Service acted in accord with the National A!!reement and that there were no

mitigating or extenuating circumstances and no procedural problems until the Union establishes

the contrary.

The record of evidence developed during the grievance - arbitration process establishes

that the Grievant, William A. Tuggle ill, is guilty as charged - that the Grievant did knowingly

operate his LLV without a valid license from October 15, 2002 through early April, 2003. It

doesn't materially change a thing that the "noinsured vehicle" suspension had been in error; the

Grievant's license had previously been suspended throughout this period for another infraction.

Any reasonable person would have/should have realized the egregious nature of such an action.

In short, the Service established a prima facie case for the Grievant's tenllination.

That same record of evidence, however, indicates various procedural flaws and mitigating

factors that warrant modification of the discipline. All the Union's claims set forth by the

Arbitrator in the preceding section of this award have merit - save the claim of disparate

treatment. As regards the latter, other than making the assertion of disparate treatment. the Union

never met its burden of establishing "unlike treatment under like circumstances." On all other

issues the Union is persuasive.

First, the Grievant was denied due process by not being afforded the opportunity to

confront and cross-examine his primary accuser, Supervisor Darrell Jackson. during the grievance-

dispute resolution process. It matters not that Supervisor Jackson was terminated prior to the

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"

instant dispute resolution process; the Grievant has a right to confront his accuser. Because this

"silent witness" was not produced during the hearing, the Arbitrator was denied best evidence as

to whether Supervisor Jackson gave the Grievant reason to believe that it was "OK to drive."

Tme, the Grievant should have known better. But given Jackson's supervisory position against

the backdrop of the Grievant's military training, such a communication would constitute a

significant mitigating circumstance for the Grievant's action. As it is, the Grievant must be given

the nod regarding credibility vis-a-vis Supervisor Jackson because Jackson has since been removed

from the Postal Service for breach of trust and conversion of Postal Service funds - hardly a

ringing endorsement of Jackson's version of events concerning the Grievant.

The foregoing argument cannot be summarily dismissed as new argument as the Service

would have the Arbitrator do, The record of evidence gives sound support to the Union's claim

that this argument was raised from the outset of grievance proceedings. The latter can be

reasonably inferred from the Grievant's answers during the investigative interview of April 28',

2003, the Grievant's written statement of July 7, 2003, the Postal Service's Grievance Summary

- Step I (P.S. Form 2608) where the Union's position is given as "Daryl Jackson is lying in

order to help save his own job," and Supervisor Cheryl Satterfield's signed statement where she

writes: "He said Darrell knew it. "

Next, the weight of evidence indicates that the discipline was fatally flawed because the

discipline was not properly issued, reviewed, and concurred with per Article 16.6 of the National

Agreement as interpreted by Arbitrator Dana Edward Eishen in National Arbitration Award Case

No, E95-4E-D 01027978 (December 3,2002). By the Service's own admission, the reviewing

authority, Station Manager Mark Jarrett, conducted the investigative interview of the Grievant,

interviewed supervisors, took statements, and gathered other evidence. The issuing supervisor,

"Acting" Supervisor Customer Services Lori Kiemeyer, merely relied upon the evidence collected

by her superior, Manager Jarrett, Beyond talking to several other involved supervisors, she failed

to talk/interview either the Grievant or Supervisor Jackson - the real principals in the case,

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The critical factor for this Arbitrator in concluding that Supervisor Kiemeyer's role was

oro forma (i.e., simply going through the motions of an issuing supervisor) and subtly coerced

was her response to Union Steward Winston Ward's question "Who staI1ed the process of this

grievance?" Supervisor Kiemeyer responded "I did I guess because Mark had me sign the

paperwork." This response strongly implies that Station Manager Jarrett made the decision with

Kiemeyer coerced/compelled, if for no other reason than by viI1ue of her new status and "acting"

title, to issue the discipline. What other meaning can be attributed to the word "had" in

Kiemeyer's response? By juxtaposition of events, the actual roles of Kiemeyer and Jarrett were

more in the nature, respectively, of reviewing official and issuing official rather than the reverse.

Whatever the case, the weight of evidence convinces this Arbitrator that the Service violated

AI1icle 16.6 Review of Discipline. For, according to Arbitrator Eishen in National Arbitration

Award Case No. E95-4E- D 01027978 (December 3, 2002), AI1icle 16.6:

b) Is violated if there is a "command decision" from higher authority to impose asuspension or discharge;

e) Is violated if there is a failure of either the initiating or reviewing official tomake an independent substantive review of the evidence prior to the imposition ofa suspension or discharge;

Simply put, in this Arbitrator's opinion, the Service's actions prejudiced Grievant Tuggle's right

to be heard.

Another mitigating factor not given appropriate weight by the Service in detennining

appropriate discipline in the instant case was Arbitrator William J. LeWinter's well known "bank

of good will" - in this case built up through more than seventeen (17) years of service to the

Postal Service. Along with other mitigating factors and procedural issues discussed herein, this

bank of goodwill, in the Arbitrator's opinion, warrants modification of capital discipline.

Finally, the Service's argument of irrevocable breach of tmst and, consequently, the bond

of the employment relationship is belied by its own actions following the Grievant's admittedly

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very serious infraction. If the Grievant's breach of trust was as irrevocable as the Postal Service

claimed, why is it that the Service saw fit to entrust this carrier to carry the mail (i.e., continue

his daily job tasks as usual) from April 21, 2003, the date that his license suspension was lifted,

through the end of July, 2003, the date that his tennination became effective? Apparently, the

breach of trust was not irrevocable but instead, to quote Arbitrator William J. LeWinter in Case

No. EIN-2D-D 4628, is:

... of such a nature that the faith and trust the Employer places in thecarrier, though shaken, may be possible to restore.

For all of the foregoing reasons, the Arbitrator rules that there was not just cause for the

Grievant's removal from the Postal Service. Still, the weight of evidence clearly and convincingly

establishes that the Grievant committed a very serious infraction (i.e., operating a postal vehicle

without a valid driver's license) warranting the severest fonn of discipline short of capital

tennination, namely, a long-tenn suspension. - given the procedural errors and mitigating

circumstances surrounding this case.

Award

After a careful review and examination of the Parties' stipulations, the evidence, the facts,

the cited arbitration awards, and the circumstances of this case, the following award is made:

I. The Grievance of William A. Tuggle III is found to be meritorious in part. The

Employer's motion to uphold the Removal and to dismiss the Grievance is denied:

GRIEVANCE SUSTAINED IN PART/REtvlOVAL MODIFIED

2. The Postal Service is hereby ordered to reinstate the Grievant without back pay

upon receipt of this decision - effectively converting his removal to a long-tenn

suspension.

3. The Parties are hereby directed to compensate the Arbitrator for his fee and

expenses in accordance with the applicable provision(s) of the National Agreement.

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. ,

Dated this 19th day of December, 2003 at Yorktown, Indiana.

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