ARBITRATION AWARD. i i. i i. Relevant contract provisions Art AWARD SUMMARY

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1 ARBITRATION AWARD In the Matter of UNITED STATES POSTAL SERVICE and NATIONAL ASSOCIATION OF LETTER CARRIERS i i i i E90N 4E D DARYLSUHR Before EDWIN R RENDER Appearances For the Service For the Union Thomas King LC Hanson Place of hearing BREMERTON WA Date of hearing 17 OCTOBER 1995 Date of award 23 NOVEMBER 1995 Relevant contract provisions Art step 2 ( C) or (D) Contract year 1994 Type of grievance REMOVAL AWARD SUMMARY A last chance agreement cannot be interpreted so as to authorize the discharge of an employee for missing meetings with a substance abuse counselor where the meetings were missed prior to the time the counseling program was approved by the Service as required by the RECEIVED last chance agreement. DEC JIM WILLIAMS, NBA EDWIN R RENDER National Association Letter Callers Arbitrator

2 . LISPS & NALC E90N 4E D DARYL SUHR THE ISSUE This case arises out of the application of a last chance agreement between the Postal Service and the grievant. Several issues are involved. One issue relates to the timeliness of the union's step 3 appeal. The second preliminary issue is whether the grievant waived his right to the grievance procedure in executing the last change agreement. If the Arbitrator finds the present dispute arbitrable the substantive is whether the Service was entitled to discharge the grievant for a violation of one of the terms of the last chance agreement. CONTRACT PROVISIONS Article 15.2 of the contract provides in part : (a) The standard grievance form appealing to Step 2 shall be filed with the installation head or designee. In any associate post office of twenty (20) or less employees, the Employer shall designate an official outside of the installation as the Step 2 official, and shall so notify the Union Step 1 representative. (c) The installation head or design will meet with the steward or a Union representative as expeditiously as possible, but no later than seven (7) days following receipt of the Step 2 appeal unless the parties agree upon a later date.... RENDER 2

3 LISPS & NALC E90N 4E D DARYL SUHR (f) Where agreement is not reached the Employer's decision shall be furnished to the Union representative in writing, within ten (10) days after the Step 2 meeting unless the parties agree to extend the ten (10) day period. The decision shall include a full statement of the Employer's understanding of (1) all relevant facts, (2) the contractual provisions involved, and (3) the detailed reasons for denial of the grievance. (g) The Union may appeal and adverse Step 2 decision to Step 3. Any such appeal must be made within fifteen (15) days after receipt of the Employer's decision unless the parties' representatives agree to extend the time for appeal. Any appeal must include copies of (1) the standard grievance form. (2) the Employer's written Step 2 decision, and, if filed, (3) the Union corrections or additions to the Step 2 decision. Article 15.3 of the contract provide : B. The failure of the employee or the Union in Step 1, or the Union thereafter to meet the prescribed time limits of the Steps of this procedure, including arbitration, shall be considered as a waiver of the grievance. However, if the Employer fails to raise the issue of timeliness at Step 2, or at the step at which the employee or Union failed to meet the prescribed time limits, whichever is later, such objection to the processing of the grievance is waived. C. Failure by the Employer to schedule a meeting or render a decision in any of the Steps of this procedure within the time herein provided (including mutually agreed to extension periods) shall be deemed to move the grievance to the next Step of the grievance-arbitration procedure. RENDER 3

4 USPS & NALC E90N 4E D DARYL SUHR THE FACTS The grievant has worked for the Postal Service at various locations since He had a substantial break in his service during the 1 970s. The grievant began working for the Service in Washington state in The grievant conceded that his attendance has been a problem over the years. He made reference in his testimony to being placed on restricted leave at one time. Mr Jorgenson, the grievant's supervisor, testified that the grievant's overall performance had been erratic in In late September 1994 the grievant failed to report to work at his scheduled start time as he had done on occasions in the past. The Service issued the grievant a notice of proposed removal. On February 7, 1995 the grievant signed a last chance agreement in which he agreed to the following conditions : F. Daryl E Suhr agrees to make an appointment with an EAP Counselor within 14 days of signing this agreement. The EAP Counselor will complete a clinical assessment and submit any recommendations for treatment to labor relations within five working days of evaluation. Mr Suhr agrees to comply with all treatment recommendations which may include such things as completion of a certified drug and alcohol treatment program, attendance at an out patient support group or on a prescribed interval per the life of this agreement, or participation in regular EAP counseling and follow-up as determined necessary during the initial appointment with the EAP counselor. Mr Suhr agrees to provide written documentation, on a monthly basis, of all

5 . USFS & NALC E90N 4E D DARYL SUHR attendance and participation in the specified counseling program[s]. Mr Suhr also agrees that the EAP counselor will advise his immediate supervisor or postmaster on a monthly basis about his participation and progress in EAP for the duration of this agreement. G. Failure on Daryl E Suhr's part to attend any meeting in F. above, failure on his part to provide required documentation, or failure to participate as required in EAP will result in his immediate removal from the Postal Service. 7. It is agreed by all parties to this Agreement that any violation of the terms or conditions of this Agreement by Daryl E Suhr will result in his immediate removal. In the event that the removal is reissued, Daryl E Suhr agrees to forego any appeal /complaint of the removal action in any forum. It is further understood that this Agreement constitutes a last chance for Daryl E Suhr to correct his attendance problem and is considered a firm choice to eliminate any alcohol, drug or related problems. It is further agreed that alcohol or drug related problems will not be used as a defense on the part of Daryl E Suhr in any future action. The last chance agreement was signed by the grievant, the postmaster, and Mr King, a labor relations specialist. Mr Jorgenson testified that local union president Riccardi was present during the negotiation of this agreement but did not sign it.

6 USpS & NALC E90N 4E D DARYL SUHR The grievant was participating a drug and alcohol rehabilitation program known as "ADAPT" at the time of his latest removal. The grievant initially sought treatment at ADAPT on November 10, 1994, which is well before the execution of the last chance agreement. On December 9 the grievant participated in a pretreatment review with Ms Carroll, one of the counselors at ADAPT. He began intensive outpatient treatment on December 27, On January 19, 1995 Ms Carroll wrote Mr King, the Service's labor relations representative, a letter in which she recommended a course of treatment for the grievant. The course of treatment included the following : The recommended treatment plan is of two years' duration : Intensive outpatient for eight weeks, followed by six weeks of aftercare (sobriety maintenance) at ADAPT, and the balance of the two years at a certified program of his choice. He has now satisfactorily completed four weeks of Intensive Outpatient. He is also expected to attend a minimum of two AA and/or NA meetings per week, verified by signed attendance slips. The sobriety maintenance group at ADAPT is held for one ninety-minute session weekly. During the period between December 1994 and early February 1995 the grievant appears to have attended a large number of meetings sponsored by ADAPT. On February 8, 1995 the Service 's EAP counselor, Ms Campbell wrote a letter to Ms Carroll, the grievant 's counselor at ADAPT requesting

7 Us,PS & NALC E90N 4E D DARYL SUHR certain information in accordance with the last chance agreement. The letter states : Enclosed is a signed Authorization to release information for Daryl Suhr, who is a client in your intensive outpatient program. As part of compliance with Daryl Suhr's Last Chance Agreement with the USPS where he works, I am requesting monthly progress reports and status of Daryl Suhr's participation in his CD recovery program. I wold appreciate information from you as to his recommended treatment and his compliance with that treatment. Shortly after the execution of the last chance agreement Ms Carroll called Mr Jorgenson and told him that she wanted the grievant to come to ADAPT offices for a random drug screen. During the course of that conversation Ms Carroll told Mr Jorgenson that the grievant had missed two "check back " meetings at ADAPT. The "check back " meetings that the grievant missed were scheduled for February 13 and February 21, Within a few days Mr Jorgenson contacted the grievant and asked him about missing the two above referenced meetings. According to Mr Jorgenson the grievant admitted that he had and simply explained that he forgot. Mr Jorgenson considered this to be a breach of the last chance agreement so he issued a proposed removal.

8 U$PS & NALC E90N 4E D DARYL SUHR As was noted earlier on February 8, 1995 Ms Campbell, the Service's employee assistant counselor asked ADAPT to inform it as to the recommended course of treatment. On February 22, 1995 Ms Carroll responded Ms Campbell by a letter which indicated that the grievant had completed the intensive outpatient, phase I of his treatment program. The letter also outlines a continued program of treatment. The letter states : Daryl Suhr has completed the Intensive Outpatient, Phase I, part of his treatment program, which consisted of eight weeks of group (total 72 hours) and a minimum of two 12 step meetings per week validated by signed attendance slips. Due to inclement weather, he was unable to keep one of the four one:one sessions required during Intensive Outpatient. He had a one :one session scheduled with me on February 21, but failed to keep that appointment, and at the time of my writing this letter, he has not called to explain his absence. Mr. Suhr's random drug test was negative on January 26,1995. I have advised him, he would be notified of future random UA drug tests and he will be requested for testing this afternoon. The Port Orchard Post Office will advise me the time of his notification to ensure the time frame within which the testing is done is appropriate. The patient's progress throughout Intensive Outpatient has been fair. His AA attendance and group attendance has been consistent. I will be sending you monthly status reports. Mr. Suhr is scheduled to complete six weeks of his aftercare program here (90 minutes per week, plus continued 12-step attendance and one :one session with me). I will advise you of any aberrations in drug tests, should they occur.

9 USPS & NALC E90N 4E D DARYL SUHR On February 24 Ms Campbell wrote a memo to Mr King which states : As Daryl Suhr's Last Chance Agreement requests, I am herewith making recommendations regarding his treatment : 1. Completion of the ADAPT drug and alcohol treatment program, consisting of eight weeks of group (72 hours), and minimum of two 12-step meetings per week validated by signed attendance slips. Four one : one sessions with ADAPT CD Counselor, Dorothy Carroll, MA, CCDCII. Continued participation in ADAPT drug and alcohol treatment program as recommended by ADAPT CD treatment professionals, anticipated to be an out patient support group. 2. Monthly sessions with this USPS EAP Counselor for the term of the Last Chance Agreement. Meanwhile Mr Jorgenson proceeded with the removal action. The notice of proposed removal is dated March 14, 1995 and states, in part : VIOLATION OF YOUR LAST CHANCE AGREEMENT. On February 7, 1995, you signed a Last Chance Agreement as resolution to a Notice of Proposal Removal issued to you on october 4,1994. As part of that last chance agreement, you agreed to met with an EAP counselor concerning your drug/alcohol problems and further agreed to... comply with all treatment recommendations which may include such things as completion of a certified drug and alcohol treatment program, attendance at an out-patient support group or on a prescribed interval per the life of this agreement, or participation in regular EAP counseling and

10 LISPS & NALC E90N 4E D DARYL SUHR follow-up s determined necessary during the initial appointment with the EAP Counselor. The recommendation that came from Jeannie Campbell, EAP Counselor, included the following : 1. Completion of the ADAPT drug and alcohol treatment program, consisting of eight weeks of group ( 72 hours ), and minimum of two 12 step meetings per week validated by signed attendance slips. Four one : one sessions with ADAPT CD Counselor, Dorothy Carroll, MA, CCDCII. Continued participation in ADAPT drug and alcohol treatment program as recommended by ADAPT CD treatment professionals, anticipated to be an out patient support group. Paragraph 2.G. of your last chance agreement stats : G. Failure on Daryl E. Suhr's part to attend any meeting in F. above, failure on his part to provide required documentation or failure to participate as required in EAP will result in his immediate removal from the Postal Service. Finally, paragraph 12 of the Last Chance Agreement states : 12. Daryl E. Suhr's continued employment is conditioned upon compliance with the terms of this Agreement. A violation of any of the terms shall constitute just cause for immediate removal of Daryl E. Suhr. On February 22, 1995, I received a telephone all from your ADAPT counselor, Dorothy Carroll, informing me that you were to be scheduled for a random urinalysis that afternoon. During that telephone conversation, she also informed me that you had missed two (2) of your required one :one sessions one on RENDER 1 0

11 USPS & NALC E90N 4E D DARYL SUHR Monday, February 13, 1995, and the other on Tuesday, February 21, Ms Carroll, the grievant's counselor at ADAPT testified that the grievant enrolled in the program in November He was in a group program which required his attendance at several group meetings. She said that if a patient cannot attend one of the group meetings they are expected to call in. The grievant did not miss any group meetings. The meetings the grievant missed were "check back" meetings that are scheduled between the individual client and the counselor. The scheduling of these meetings is somewhat discretionary. As part of the grievant's program he was to have had four check back meetings during an eight week period. The scheduling of these meetings was arranged through a receptionist at ADAPT and it was not a violation of ADAPT practices or procedures for a counselor to cancel a meeting or for a patient to cancel a meeting. Missing one of these meetings does not mean that one is not making satisfactory progress in the rehabilitation program. With regard to the February 13 meeting, Ms Carroll testified that the grievant told her that he simply forgot the meeting. Substantially the same thing again happened on February 21. It was also undisputed that the grievant eventually did attend his four check back meetings with Ms Carroll. She also said that the grievant successfully completed the intensive outpatient program and RENDER 11

12 USPS & NALC E90N 4E D DARYL SUHR had progressed to a sobriety maintenance program in which he apparently remains a participant. The union filed a step 1 grievance on March 21, The Service's step 2 decision is dated March 23, The union's appeal to step 2 is dated April 2, The parties agreed that there was no step 2 decision. The union's step 3 appeal is dated April 21, The step 3 meeting was held on June 13, 1995 and the step 3 decision is dated June 19, The Service denied the grievance at each step (other than step 2) and it is presently before the Arbitrator. POSITIONS OF THE PARTIES Position of the Service The Service contends that the grievance is not properly before the Arbitrator for two basic reasons. First, the Service contends that the union did not move the grievance from step 2 to step 3 in a timely manner. The Service contends that the union's step 2 appeal which is dated April 2 should have been heard no later than April 10. The Service next argues that since no step 2 meeting was held and no step 2 decision made, the ten day period referred to in article 15 started running on April 10. It is RENDER 1 2

13 USPS & NALC E90N 4E D DARYL SUHR undisputed that the union 's step 3 appeal was dated April 21, more than 10 days from the date on which the Service should have issued a step 2 decision. Because the union did not move the grievance from step 2 to step 3 in a timely manner, the Service contends that article 15 of the contract requires its dismissal. The second basis upon which the Service argueds that this grievance is not arbitrable is fond in paragraph 7 of the last chance agreement which states that "In the event that the removal is reissued, Daryl Suhr agrees to forego any appeal/complaint of the removal action in any form." The Service contends that this provision of the last chance agreement is clear and unambiguous and deprives the Arbitrator of any authority to hear this matter. The Service also contends that the last chance agreement is valid and enforceable. Earlier the Service had just cause to discharge the grievant for unsatisfactory attendance. The Service actually went the "second mile" with the grievant by entering the last chance agreement. There is no question that the grievant understood the terms of the last chance agreement because union president Riccardi was present when the RENDER 1 3

14 USPS & NALC E90N 4E D DARYL SUHR agreement was negotiated and both he and the grievant understood all of its terms. The last chance agreement clearly obligates the grievant to attend all meetings and to comply with all treatment recommendations of ADAPT. The agreement also provides that his failure to do so will result in his immediate removal from the Postal Service. Because the grievant violated the terms of his last chance agreement the grievance must be denied even if the Arbitrator incorrectly chooses to reach the merits of this case. Position of the Union The union contends that it proved the grievance was processed in a timely manner at all steps. The union contends that the Service should not be permitted to rely on the defense of untimeliness when the Service's action, or lack thereof, itself is the root cause of the problem. The Service failed to issue a step 2 decision as it was required to do in the contract. The union contends that none of the cases cited by the Service involve a situation in which a grievance was held to be untimely because the Service initially failed to take an action that it was required to take during the course of the grievance procedure. RENDER 14

15 U$PS & NALC E90N 4E D DARYL SUHR The union next argues that the provision in the last chance agreement relinquishing access to the grievance procedure is not enforceable. The union bases this argument on several theories. The union contends that the agreement was made without any union representation in the matter. Union president Riccardi was not acting as a representative of the union in this meeting. Furthermore, it is noted that no representative of the union signed the last chance agreement. The union contends that as the exclusive bargaining agent of the letter carriers, it is an essential party to any last chance agreement. The failure of the Service and the grievant to include the union in such an agreement is fatal to the validity of such an agreement. Even if the Arbitrator were to somehow conclude that Mr Riccardi was a representative of the union and that he was acting within his authority as a union representative, the last chance agreement is still null and void. The reason is that local union officials have no authority to modify the National Agreement. Paragraph 7 of the last chance agreement upon which the Service relies is clearly a modification of the National Agreement. The National Agreement gives the union and employees access to the grievance procedure. A local union official simply lacks the authority to enter into an agreement which deprives an individual of that RENDER 15

16 LISPS & NALC E90N 4E D DARYL SUHR right. Moreover, the union at the national level is affected by such agreements. The local parties do not have the authority to enter into agreements which may have the effect of depriving the national union from pursuing grievances that are in the interest of all employees. For these reasons the union contends that the Arbitrator does have jurisdiction to hear this case on the merits. Turning to the merits of the case, the union makes several points. The union notes that no interest of the Service was adversely affected by the grievant missing the two meetings that he did. The grievant was not late for work and no legitimate employer interests were adversely affected by the grievant's failure to attend the comeback meetings. In order for just cause to be present, it is necessary for some interest of the employer to be adversely affected by the grievant's offduty conduct. Here there is none. The union also notes that the grievant had been successful in working his way through the rehabilitation program at ADAPT at the time of his removal. The grievant has submitted to several random drug tests both before and after his discharge and there is no evidence that he has abused either drugs or alcohol since November Thus, the purpose of the RENDER 1 6

17 USPS & NALC E90N 4E D DARYL SUHR last chance agreement is being fulfilled insofar as it relates to any alleged drug or alcohol abuse on the part of the grievant. The union also notes that there is a good deal of flexibility in scheduling comeback meetings at ADAPT. These meetings are not like the regular group sessions that are held on a regularly scheduled basis where clients are expected to interact with other clients in a group setting. These comeback meetings are one on one meetings with the counselor which are scheduled at the convenience of both the client and the counselor. Either is permitted to cancel the meetings. Therefore the fact that the grievant missed these two meetings does not put him in violation of the EAP approved program nor did it result in his being dismissed from ADAPT. Finally, the union notes that the two meetings missed occurred before the Service ever officially approved the rehabilitation program for the grievant. In these circumstances it is illogical to say that the grievant violated the terms of the last chance agreement and his approved treatment program when it had not yet been approved at the time he missed the meetings. For all these reasons the union requests that the grievant be reinstated with back pay. RENDER 1 7

18 USPS & NALC E90N 4E D DARYL SUHR DISCUSSION Based on the provisions of the contract, the testimony given at the hearing, and the arguments of the representatives of the parties, the Arbitrator has concluded that this grievance is properly before him. For the reasons given in detail below, the grievant is reinstated with back pay and the last chance agreement is extended for an additional year to February 6, 1997 a a condition of reinstatement. There are two fundamental points which must be regrading the Service's arbitrability arguments. First, there is no proof in this record as to precisely when the Service received the Union's step 2 appeal. Receipt of the step 2 appeal is crucial to starting the seven day period during which a step 2 meeting is to be held. There being no proof as to when the Service received the step 2 appeal, there is simply no way that the Arbitrator can assign a date specific on which the step 2 meeting should have occurred. This being the case, it also follows that there is no date on which the Arbitrator can logically say that the step 3 appeal had to be filed. Hence, the Service's argument respecting timeliness is rejected. RENDER 1 8

19 USPS & NALC E90N 4E D DARYL SUHR Next, the Union and the Service advanced several arguments directed at the substantive arbitrability of this grievance. The Arbitrator thinks that he need not decide each and every one of these arguments and that there is a narrower basis for finding authority to arbitrate violations or nonviolations of the agreement than is found in some of the broad theories advanced by the parties. The second sentence in paragraph 7 of the last chance agreement really forces the Arbitrator to determine the authority of the local representatives to agree to a last chance agreement. That sentence states : "In the event that the removal is reissued, Daryl E Suhr agrees to forego any appeal/complaint of the removal action in any form." The Arbitrator thinks that it would be inappropriate to apply the above-quoted language according to its literal terms. Surely the Service does not and could not argue that if the grievant were blantly discharged for reasons of race, sex, national origin, or union activity that this language would preclude any remedy whatsoever. There are cases holding that notwithstanding such an agreement an individual employee can litigate constitutional and statutory rights and that some of these rights cannot be waived even with the consent of the union. Moreover, there is arbitral authority for the proposition that not withstanding such a provision in a last chance agreement, an arbitrator has the authority to determine whether the terms of the agreement are violated. If an arbitrator did not RENDER 19

20 LISPS & NALC E90N 4E D DARYL SUHR have this authority this language, literally read, could permit the Service to discharge the grievant for absolutely no reason whatsoever. The Arbitrator does not think that this was the intent of the parties. Accordingly the Arbitrator does think that it is proper to reach the merits of this case. The Arbitrator has concluded that there has not been a violation of paragraph 2F and G of the last chance agreement. The agreement was entered into on February 7, The agreement obligates the grievant to have an meeting with the EAP counselor within 14 days. There was no direct testimony whether this meeting occurred. In any event the next sentence required the EAP counselor to complete a clinical assessment and submit any recommendation for treatment to labor relations within five working days of the evaluation. This would mean that by February 26, 1996 such a recommendation should be sent to labor relations by EAP. This was actually done on February 24, Ms Campbell's letter to Mr King is precisely that. Ms Campbell letter states : "I am herewith making recommendations regarding his treatment." There is no evidence that anyone contemplated making these recommendations and approvals retroactive. The recommendation took effect at that time even though the grievant had been in a program at ADAPT for nearly three months prior to February 24. It is not logical to RENDER 20

21 USPS & NALC E90N 4E D DARYL SUHR say that Ms Campbell is making a recommendation that the grievant attend intensive outpatient and sobriety maintenance including the obligation to attend all checkup meetings as of February 24 and then to turn around and find him in violation of her recommendations for having previously missed two meetings. Had the grievant missed meetings after February 24, 1995 it could logically be said that the grievant was in violation of the terms of the last chance agreement. However, since the recommendations could not take affect until approved by the EAP counselor and sent to labor relations, it follows that any technical violations of the ADAPT program which occurred prior to that could not be violations of the last chance agreement. For these reasons the Arbitrator finds that there is no violation of the last chance agreement and that the grievant must be reinstated. The Arbitrator thinks that he has considerable discretion in the area of remedy in a case like this. The Arbitrator first thinks that the grievant should be awarded back pay. There is no evidence that the grievant's failure to attend these two ADAPT meetings in any way affected any interest of the Service. The Arbitrator also thinks that it is appropriate to extend the term of the last chance agreement to February 6, The grievant has been off work for several months. The Arbitrator thinks that the Service is entitled to see whether he will perform and that his RENDER 21

22 USPS & NALC E90N 4E D DARYL SUHR attendance problems are corrected and it should be given a substantial period of time in which to monitor his attendance. Accordingly, the Arbitrator orders that the grievant be made subject to the last chance agreement until February 6, AWARD The grievant is reinstated with back pay. The last chance agreement is extended until February 6, 1997 as a condition of reinstatment. 23 November 1995 EDWIN R RENDER Arbitrator RENDER 22