REGULAR ARBITRATION PANEL. Ronald Dixon. Charles Vigee AWARD SUMMARY

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1 In the Matter cf Arbitration REGULAR ARBITRATION PANEL between Grievant : Duplessis III c ~ 1 F-7 77 United States Postal Service Post Office : New Orleans. Louisiana and Case No : G94N-4G-D National Association of Letter Carriers, AFL-CIO Before : Devon Vrana, J.D. Appearances : For the Postal Service : For the Union : Ronald Dixon Charles Vigee Place of Hearing : New Orleans. Louisiana Date of Hearing : September 15, 1998 } ~1s; t jsy Date of Award : October Relevant Contract Provisions : Articles and 19 Contract Year : Type of Grievz.nce : Discipline AWARD SUMMARY The grievance is sustained. The Union established that Management is guilty of double jeopardy. As a result of its contractual infraction, Management shall remove Grievant's notice of termination from all of its files and records. Management shall also make Grievant whole for all lost wages and benefits. It was also highly improper for Management to require Grievant to pay for the damage to the bicycle. As a result, Management shall reimburse Grievant for $ plus interest.

2 ISSUE(S) 1. Did Mmagement have just cause to issue Grievant a notice of removal? If not, what is the appropriate remedy? STATEMENT OF THE CASE The herring opened as scheduled on September 15, 1998 in New Orleans, Louisiana. All parties were given an opportunity to present evidence, both oral and written, to cross-examine witnesses and to present arguments of their respective positions. This is a regular panel case. The merits of the grievance are properly before this Arbitrator for decision. The parties requested that the record remain open until September 22, 1998 so that they could submit post-arbitration awards. On September 23, 1998, the Arbitrator received the parties' award! ; and closed the record. STIPULATIONS OF FACT 1. The grievance is properly before the Arbitrator. 2. Grievant was involved in an accident. 3. Grievait is a transitional employee. FACTUAL BACKGROUND On August 28, 1997, the Grievant was involved in accident with a cyclist at the intersection of Napoleon and Prytania. After the light turned green, Grievant began to turn right and a cyclist ran into the front side of his vehicle. During the police investigation, Officer Strigus determined that Grievant and the cyclist contributed to the accident. 2

3 In particular, Officer Strigus determined that the cyclist improperly tried to travel straight in a turning lane. Officer Strigus also concluded that Grievant failed to use reasonable vigilance while driving. More specifically, Officer Strigus determined that before he turned, Grievant should have seen the cyclist stopped next to him at the traffic light. On September 30, 1997, Anthony Grandolfo, Supervisor, Customer Services, issued Grievant, a transitional employee, a notice of termination. (See Jt. Ex. No. 2, pp. 8-10). In the notice of remc val, Grandolfo charged as follows : You are hereby notified that you will be removed from the Postal Service effective, Friday November On Thursday, August 28, 1997, while performing your assigned duties on Route # 1521, your assigned LLV # collided with a bicycle, at the intersection of Napoleon Avenue and Prytania Street. An investigation of the accident revealed the following : At approximately 1710 hours, you were at the stop light, at Napoleon Avenue, and Prytania Street. There was also a bicycle stopped at the same stop light, at this intersection. When the light turned green, you proceeded to make a right turn when the bicyclist ran into the front side of the Postal vehicle, causing damage to the bicycle.... Id. As a result of the accident, Grandolfo charged Grievant with violating Section X of EL 814 and Parts , and of the M-41 Handbook. 3

4 DISCUSSION AND OPINION 1. Management's Contentions Grievan t is a transitional employee. As a result, Grievant is not entitled to progressive discipline. The Arbitrator's role in this case is restricted. Specifically, the only issue before the Arbitrator is whether Grievant is guilty of the charges in the letter of removal. Once Management establishes Grievant's guilt, the Arbitrator does not have authority to modify the penalty. As a result of his unsafe driving practices, Grievant was involved in an accident with a cyclist. In his letter of removal, Management charged Grievant with unsafe driving practices. Management clearly proved that Grievant is guilty of the charges against him. As a result, under Mittenthal's TIE award, Management had just cause to remove the Grievant. 2. Union ' s Contentions The instant case is improperly before the Arbitrator. Grandolfo offered to settle the instant case if Grievant paid for the damage to the bicycle. Grievant agreed to the terms of the settlement and paid the cyclist for the damage to her bike. In spite of the settlement, Management issued Grievant a letter of removal. Management is clearly disciplining Grievant twice for the same offense. As a result, the instant grievance is barred because it is a case of double jeopardy. 4

5 In the alternative, Management did not havejust cause to remove Grievant. Grievant's removal is thus punitive and not corrective in nature. For instance, Management failed to establish that Grievant is guilty as charged. Grievant did not drive in an unsafe manner. Rather, the cyclist failed to pay attention and ran into Grievant's vekicle. In fact, Management did not consider removing Grievant until the Union used this case as an example of "disparate treatment." Consequently, Management did not have just cause to issue Grievant a not :.ce of removal. 3. Arbitrator' s Decision Pursuant to the National Agreement, the concept of progressive discipline does not apply to transitional employees. Consequently, transitional employees do not receive many of the same protections and rights afforded to regular letter carriers. Section 11 of Appendix C of the National Agreement also requires me to limit my findings and conclusion to the question of whether Grievant is guilty as charged. Section 11 provides in rel.vant part as follow :...The issue will be whether the employee is guilty of the charge against him or her. Where the employee is found guilty, the Arbitrator shall not have authority to modify the discharge.... Section 11 indisputably restricts the scope of my role in this arbitration. In Case No. G90N-4G , Arbitrator Baldovin analyzed an Arbitrator's role under Appendix C. Arbitrator Baldovin reasoned as follows : 5

6 ...The parties having eliminated the obligation to apply progressive discipline have in effect agreed that the severity of the penalty selected by Management is not subject to attack. The only way an Arbitrator may sustain a grievance involving a transitional employee, absent bad faith or pretext, is for the Arbitrator to find that the offense charged either did not occur or that someone else, other than the Grievant was responsible. In short, that the Grievant was not guilty of the charge against him/her.... In the instant case, Grievant was a transitional employee. See Stipulations of Fact. On August 28, 1997, Grievant was involved in accident with a cyclist at the intersection of Napoleon and Prytania. After the light turned green, Grievant began to turn right and a cyclist ran into the front side of his vehicle. During the police investigation, Officer Strigus determined that Grievant and the cyclist contributed to the accident. In particular, Officer Strigus determined that the cyclist improperly tried to travel straight in a turning lace. Officer Strigus also concluded that Grievant failed to use reasonable vigilance while driving. More specifically, Officer Strigus determined that before he turned, Grievant should have seem the cyclist stopped next to him at the traffic light. Management maintains that if Grievant had carefully looked into his mirror before turning, he would have seen the cyclist. Because Grievant contributed to the accident with the cyclist, Management argues that it proved that Grievant is guilty of unsafe driving. In response, the Union contends that Grievant's removal is an unfair case of "double jeopardy." In support, the Union argues that this case was settled when Grievant agreed to pay for the damage he caused to the bicycle. By removing Grievant for the accident, the Union argues that Management is improperly disciplining Grievant for the same offense twice. I agree. 6

7 Under section 11 of Appendix C of the National Agreement, the issue before me is whether Grievant is guilty as charged. Before determinin g this issue, however, I must determine whether Grievant's removal is an improper case of double jeopardy. Throughout the grievance procedure, Grievant argued that he settled this matter with Grandolfo. In particular, Grievant argued that Grandolfo gave him two (2) options....option 1 was to let the Postal Service pay for the bicycle rim and there would by paperwork to be written up. Option 2 was to pay for the bicycle rim myself and there would by no paperwork to be written up. (See Jt. Ex. No. 2, pp ). Fearful of losing his job, Grievant agreed to pay for the damage to the bicycle. In spite of their settlement, Grandolfo subsequently issued Grievant a notice of removal. In response, Grandolfo asserts that he never entered into a settlement agreement with Grievant. However, I am unpersuaded by Grandolfo's testimony for several reasons. First, Grievant wrote a check to Grandolfo on September 4, 1997 for $ for the damage to the bicycle. Thus, any contention by Grandolfo that he was not a part of the settlement with Grievant is ludicrous at best. More importantly, however, the Union argued throughout the grievance procedure that the instant case had been previously settled. Management never responded to or even addressed the Union's allegations regarding double jeopardy. Thus, any response by Grandolfo during the hearing not only constitutes surprise evidence barred under Article 15, but also lacks credibility. 7

8 Nothir g in this opinion should be construed by the parties as an expansion of the Arbitrator's rcle in a discipline case involving a transitional employee. As determined by Arbitrator Baldovin in the above-referenced case, "[t]he only way an Arbitrator may sustain a grievance involving a transitional employee, absent bad faith or pretext, is for the Arbitrator to find that the offense charged either did not occur or that someone else, other than the Grievant was responsible." Management improperly disciplined Grievant twice for the same action. Consequently, Management is guilty of double jeopardy. As a result of Management's bad faith, the Arbitrator is forced to sustained this grievance. Furthermore, I have never heard of the Postal Service requiring an employee to pay for damage he/she unintentionally caused to a vehicle while in the scope of his/her employment. An employee involved in an accident, such as the one in the instant case, is surely insured by the Postal Service. As a result, any attempt to hold the Grievant personally liable was highly improper. 8

9 AWARD The gievance is sustained. The Union established that Management is guilty of double jeopardy. As a result, Management shall remove Grievant's Notice of Termination from all of its files and records. Management shall also make Grievant whole for all lost wages and benefits. Finally, as aforementioned, it was highly improper for Management to require Grievant to pay for the damage to the bicycle. As a result, Management shall reimburse Grievant for $230.89, plus interest. t~) October DEVON VRANA DATE ARBITRATOR 9