The following arbitration decisions are available from the NALC Arbitration DVD set. The search ...

32 Pages·2012·0.13 MB·English

The following arbitration decisions are available from the NALC Arbitration DVD
set. The search engine on that program allows you to retrieve a pdf of the
decision by clicking on the DVD search and entering the number listed to the
right of C#. You can also open the decisions by clicking on the C#s below.
C# 15316
Arbitrator: K. McCaffree
Date of Decision: 4/16/1996
Issue:
Did Management ' s actions (toward the Grievant ) on March 14 and 15, 1994
violate the National Agreement with regards to mutual respect for the parties as
set forth in various Handbooks and Manuals, pursuant to Article 19? If so, what
shall the remedy be?
Observation:
First, the Postmaster intimidated and threatened the Grievant on the workroom
floor on the morning of March 15, 1994 when he shook his finger in her face,
spoke to her in a loud and brusk voice, and sent her home with out explanation.
Not only was the behavior overtly threatening in manner, it bespoke of an
attitude of disregard for the dignity of the employee. In addition, the final
comment toward the Grievant as she left his office that morning was threatening
as well. The Postmaster said that "she would suffer the consequences" but gave
no further explanations. The Postmaster's final comment, "I'll talk to your later"
on the afternoon of March 14, in the context of the conversation and the
Postmaster's belief that the Grievant was not telling the truth, was reasonably
interpreted by the Grievant as a threat as well, whatever the intent of the
Postmaster.Further, the attitude of the Postmaster was chauvinistic as well as
authoritarian. He abruptly turned and left the Grievant talking to him on the
afternoon of March 14 after he had interrupted a conversation. Aside from being
discourteous with no explanation to the speaker on why he had to leave, the
Postmaster's statement at the hearing revealed the chauvinistic implications of
his action when he acknowledged, "I turned away and left. I had nothing more
to say to her." This represents a complete disregard for the fact that the woman
letter carrier may have and did have something to say to him. Also the claim by
the Postmaster that the Grievant was "fragile" vibrates as a chauvinistic
comment. The Postmaster had no basis upon which to make that statement,
except that the Grievant was a woman. The likelihood that a man would be
referred to as "fragile" is small, if not nil. Authoritarian power centered
management is passe, and can no longer be justified in the industrial setting.
Nor can its exercise be longer tolerated, no matter how "right “the behavioral
decisions may be. Grievance procedures, arbitration and dispute resolution
methods, among current personnel practices, have recognized that how
something is done is as important as what is done. The Joint Statement of the
parties, as well as the citations from the Handbook and Manuals on mutual
respect and the code of conduct indicate that the Postal Service and its Unions
have recognized this as well. Supervisors, who fail to change with the times, will
contribute to workforce unrest and even to violence in the workplace.
Award
Management's actions toward the Grievant on March 14 and 15, 1994 over
problems related to forwarding a patron's mail violated the National Agreement
with regard to mutual respect for the parties as set forth in various Handbooks
and Manuals, pursuant to Article 19. The grievance was sustained, and the
Employer direct to cease and desist such behavior, to write an apology to the
Grievant for the behavior, and to restore 48 hours of the sick leave balance of
the Grievant.
C# 15551
Arbitrator: R. Jacobs
Date of Decision: 5/15/1996
Issue
Whether or not Supervisor John Mike Zenuch verbally and physically assaulted
the Grievant Edward Bianoski? If so, what shall be the remedy?
Findings
The Arbitrator is persuaded that the Union is correct in arguing that a "private
apology from Zenuch to Bianoski for a very painful public humiliation and assault
is not sufficient."
...In the operation of the Postal Service, Management has a fixed obligation to
control and direct the work force in a manner which will maintain an atmosphere
between employer and employee which assures mutual respect toward the work
force in general and employees engaged in legitimate Union business. What is
especially disturbing here is that the assault was by a Supervisor on a craft
employee. Supervisors should be held to an even higher standard and act as an
example to the rank and file. The Joint Statement on Violence and Behavior in
the Workplace is intended for Supervisors as well, and Supervisors should
speak to fellow employees as they desire to be spoken to themselves, i.e. in a
respectful and positive manner, as assaults do not necessarily involve only
physical contact.
Few occurrences are considered more fraught with danger and hazardous
consequences than verbal and/or physical abuse.
Award
The Postal Service violated the National Agreement, Article 14 - Safety and
Health, and Section 115.4 of the M-39 Handbook by failing to maintain an
atmosphere of mutual respect between the Supervisor Mike Zenuch and the
Grievant Edward Bianoski on September 9, 1994. As an for a remedy
Management is hereby directed (1) to cease and desist from such actions in the
future ; (2) to re-evaluate whether Mr. Zenuch should continue to perform
supervisory duties in the Carrier section ; (3) to instruct Mike Zenuch to draft and
send to Ed Bianoski a formal letter of apology, witnessed in writing by the
Postmaster, with a copy placed in the Supervisor's personnel file ; (4) to fully
retrain the Supervisor in Management duties in accordance with the directives
outlined in its handbooks and manuals; ( 5) to note in the Supervisor ' s
employment file the recommendations of the Arbitrator that he be dealt with
more harshly should similar conduct be repeated at any time in the future ; and,
( 6) to prominently post this Award and a copy of the letter of apology for 30 days
on the bulletin board of the subject Post office unobstructed by any other
material.
C# 16459
Arbitrator: K. McCaffree
Date of Decision: 1/28/1997
Issue
Did the Employer, through the actions of Supervisor Jackie Bugarin toward the
Grievant on January 6, 1995, violate Articles 14 or 19, specifically M-39 Section
115.4 or ELM Section 666.2, or the Joint Statement on Violence and Behavior
in the Workplace? If so what is an appropriate remedy?
Analysis of Evidence
The arbitrator is aware of a "fine line” between what constitutes “warning" an
employee that continuation of present or described conduct may or will lead to
discharge and a "threat" of discharge or discipline. But I concluded in this case
that Bugarin overstepped that line and issued a threat to the Grievant rather than
issuing a warning of impending discipline from continued poor work
performance. In this sense, I sustained the grievance. The following
considerations led to this conclusion First, I believed the Grievant that he was
threatened, not warned by Bugarin. The prior and current relationship of the
Grievant to Bugarin provided a basis for the statement by Bugarin. The
continuing conflict between the supervisor and the employee over the 18
minutes above the eight hour per day standard was an irritant to the supervisor,
and a circumstance where the Grievant could be considered to be messing with,
and in the view of the supervisor, needlessly bothering her or causing her a
"problem " daily. Further the Grievant's alleged refusal to respond when the
supervisor questioned him about the reading of a magazine at his case could be
considered an aspect of insubordination and put the supervisor in an attitude of
exasperation. These and similar prior activities, alleged by Bugarin, were
sufficient to raise the supervisor's level of reaction to one of threat rather than a
calm dissertation on the fact that these matters could lead to removal. According
to Bugarin, this counseling constituted the tenth or eleventh such session in the
preceding year.
The supervisor does have authority to discipline and an ability to discharge an
employee. Here the issue constituted only an incident on one occasion in which
that authority was flaunted in the face of an employee. It was an act of
harassment and intimidation in violation of the Joint Statement.
Further, the arbitrator concluded that the supervisor crossed over the line from
a warning to a threat in an attempt to get the Grievant to perform as the
supervisor believed was proper. Clearly supervision must supervise and seek
to attain its goals of efficiency and productivity. The method of achieving those
goals must be consistent with the provisions of the Joint Statement. A nominal
variation from the methods of supervision indicated in the Joint Statement, as
occurred in the incident before the arbitrator, must be corrected.
Award
I. The Employer did violate the Joint Statement on Violence and Behavior in the
Workplace through the actions of Supervisor J Bugarin on January 6, 1995. The
Supervisor threatened the Grievant, Ralph Pitts by stating "Don't you [f-bomb]
with me or I'll have you fired." In this respect the grievance was sustained.
II. Because of the violation in I above, the Employer is directed to admonish
Supervisor J Bugarin verbally for the threat on January 6, 1995 to have the
Grievant fired and otherwise instruct her to cease and desist from such practice
in lieu of advising employees that poor performance may lead to discipline and
even removal.
III. A copy of Page 20 of this Opinion, Decision and Award with the award set
forth thereon shall be posted by the Employer on an official bulletin board at the
current locations both of the Grievant and of Supervisor Bugarin for a period of
five work days following receipt of this Opinion, Decision and Award.
C# 16961
Arbitrator: L. Bajork
Date of Decision: 6/23/1997
Issue
Did the Employer violate Articles 2, 14 and 19 of the National Agreement and the
parties ' Joint Statement by Mr. Armando Cuevas' abusive and intolerant
behavior? If so, what is the proper remedy?
Discussion and Findings
There is just too much evidence, involving too many carriers within too many
varying circumstances to conclude that Mr. Cuevas did not exhibit the described
abusive and intolerant behaviors as a result of a "bullying" attitude. Because so
many individuals have been affected by Mr. Cuevas, abusive behavior, I find that
a mere apology from him would be far short of an appropriate remedy, if not
entirely impracticable. Most significant, it should be noted that Mr. Cuevas has
had more than one opportunity to correct his behavior. I find that his repeated
failure is either evidence of his unwillingness or his'inability to do so and is,
therefore, basis for the remedy which I direct.
Award
As remedy, Mr. Armando Cuevas will be restricted from performing the duties of
any position which includes the core activity of dealing or working with carrier
employees. The purpose of this restriction is to avoid a recurrence of hostility
between Mr. Cuevas and employees of the Letter Carrier Craft, San Antonio
postal facility.
C#17420
Arbitrator: N. Hutt
Date of Decision: 10/7/1997
Issue
Is the grievance arbitrable? Whether the Postal Service violated the National
Agreement or the Joint Statement on Violence in the Workplace? If so, what is
the appropriate remedy?
Discussion
When an employee is verbally confronted by a personal and somewhat vicious
attack by a supervisor, that in and of itself, may place the employees' health at
risk. Based on the record, there is substantial evidence the Supervisor bullied
and intimidated the Grievant to such a degree that Grievant's working conditions
on the day in question were unsafe. This is also a violation of the Joint statement
on Violence and Behavior in the Workplace and Section 115.4 of the M-39
Handbook which assures mutual respect in the workplace. The grievance is
sustained.
Award
1. The grievance is arbitrable.
2. The Postal Service is ordered to cease and desist all violations of the Joint
statement on Violence and Behavior in the Workplace and the mutual
respect provision of the M-39 Handbook.
3. Supervisor Jones is directed to cease and desist from all violations of the
Joint Statement on Violence and Behavior in the Workplace and the
mutual respect provision of the M-39 Handbook.
3. The Postal Service is directed to send a written apology to Grievant for the
abusive comments, bullying, and harassment which were made to her on
April 13, 1995. A copy of the letter shall be posted on the NALC bulletin
board for 30 days at the Bixby Station and the Main Post Office.
4. The Postal Service is directed to restore the hours lost by Grievant on April
13, 1995, when she left work early.
5. The grievance is sustained.
C#17542
Arbitrator: C. Rehmus
Date of Decision: 11/3/1997
Issue
1. Was the grievance properly filed at Step 2?
2. May a violation.of the Joint Statement constitute a violation of Article 14 of
the National Agreement?
3. Was the Joint Agreement violated?
4. If the answers to 1-3, above, are affirmative, what, if any, shall be the
remedy?
Was the Joint Statement Violated?
London's words at his initial stand-up.with.employees are, for the most part,
stipulated. He spoke of the need to listen to three voices--those of employees,
customers, and the Postal Service. He also spoke of the need to reward good
performance. Bad performers, London testified he said, "would be improved."
The sole contradiction comes here, where four witnesses stated London said ;
"Bad performers will be fired" or "gotten rid of." This statement was developed
further in his make-up stand-up three days later, where London apparently told
those present he would fire bad performers ; he was not afraid to have trouble
with anyone because he would retire in two years. In this context I note the. Joint
Statement italicized this sentence, "Making the numbers' is not an excuse for the
abuse of anyone."
It is undenied that in the original stand-up London reacted with outspoken
hostility to a deputy steward who was taking notes of his remarks. It is also
agreed that London, when a suggestion was made he thought he had already
responded to repeatedly struck his forehead with the palm of his hand as if to
say "duh" or "stupid." This action was considered so egregious by some present
that the longtime carrier whose suggestion was. treated in this manner was
apologized to by both Union and Management representatives after the stand-
up.
There is no need to continue employees' and.the Union ' s litany of complaints'
against this archaic management style. The Joint Statement concludes, " But let
there be no mistake that we mean what we 'say and will enforce our commitment
to a workplace where dignity, respect and fairness are basic human rights, and
where those who do not respect those rights are not tolerated." : I conclude that
London ' s remarks were abusive and hostile and apparently were made without
cause or reason. His remarks and actions did not demonstrate the mutual
respect and dignity between supervisors, and employees expected.in modern
personnel systems and commanded by the Joint Statement. They certainly did
not reflect the values set forth in the Joint Statement. Because stress and threats
are! linked to invidious workplace behaviors in the Joint Statement, London's
statements and actions also violate Article 14, the Health and Safety article, of
the National Agreement as well.
Award
1. The former Officer-in--Charge, Yucaipa, CA, Charles London, shall cease
and desist from violating Article 14 of the National Agreement and the Joint
Statement on Violence and Behavior in the Workplace ; and,
2. Charles London shall return to the Yucaipa Post Office and hold a stand-
up apologizing for his remarks during the September 20, 1996, stand-up
; or, as alternative to 2, 3. Charles London shall write a letter to Yucaipa '
Postal employees including the apology ordered in 2. above ; such letter
to be posted on the Yucaipa, CA,'Post Office employee bulletin board for
120 days.
C#17559
Arbitrator: E. Hales
Date of Decision: 11/10/1997
Issues
1. Did the filing of the grievance in this case at Step 2 of the Grievance
Procedure, as an Article 14 violation, render the grievance procedurally
defective and not arbitrable?
2. Does the evidence presented in this case establish a violation of the Joint
Statement and Article 19'with the applicable provisions of the. "Methods
Handbook, Series M-39" ("M-39") ?
Discussion and Findings
In considering this grievance on its merits,..the evidence does reveal, without
significant dispute from the Service, that the manner in which Seiss confronted
the Grievant concerning his work performance was unacceptable. The fact that
Seiss' conduct towards the Grievant was unacceptable appears to be supported
by the testimony of Service witness John Watson, Manager of Customer
Service. Watson stated that it was inappropriate for the supervisor to point his
finger in the Grievant ' s face or to be sarcastic to an employee when dealing
with work problems. Thus, the evidence in this matter does reveal that the
manner in which Seiss confronted the Grievant about walking too slow on his
route and spelling "S.L.O.W." in the manner that he did was a sarcastic and
demeaning act, which cannot be condoned. Finally ; Watson testified that the
tactics reportedly used by Seiss were not
acceptable under any circumstances.
Award
It is found that the supervisor's conduct on October 1,1996 towards the Grievant
was a violation of the Joint Statement and that local management be required
to fully and fairly investigate employee complaints of violations of the. Joint
Statement. Further, local management shall be required to take appropriate
corrective action when violations of the Joint Statement are
found to have occurred.
C# 17586
Arbitrator: K. McCaffree
Date of Decision: 12/8/1997
Issue
Did the Employer violate the Agreement at Articles 3, 5, 14, or 19 including
Section 115.4 of the M-39 or the "Joint Statement on Violence and Behavior in
the work place" by the behavior of Supervisor Richard Bernal toward Letter
Carrier Cheryl Turpin on June 3, 1996? If so, what is an appropriate remedy?
Discussion
As the Employer proposed, three issues arose potentially in this grievance. What
happened. Was what happened a violation of the Joint Statement or Articles of
the Agreement? If what happened was a violation of the Agreement or
associated documents, what is the proper remedy? The latter would involve the
issue of the extent of the jurisdiction and authority of the arbitrator.
What Happened?
The central issue of fact on what happened on the dock and in the parking lot
between Turpin and Bernal on June 3 was whether the latter made an obscene
gesture toward Turpin. As a finding of fact, I concluded for the following reasons
that the supervisor more likely than not did make the gesture.
First, Battaglia gave positive and affirmative testimony as to what she saw,
described it in some detail, and was unshaken in examination on what she saw.
Although she stood some distance from the dock where Bernal was, the nature
of the movement by Bernal, from the hip to above his head, could readily be
seen by Battaglia from her, position in the parking lot some forty to fifty feet
away.
Second, the circumstances at the time were such that the gesture would not
have been unexpected. Bernal believed that he arranged for an interview at the
end of Turpin's shift, and when Turpin clocked out and left without contacting
him, Bernal would reasonably have been "put out," "irritated," "exasperated," or
even "angry" with Turpin. These feelings increased reasonably when Turpin's
near insubordination occurred in her comments to Bernal from the middle of the
parking lot. Even though Turpin had clocked out, she was still on 'Employer
premises and subject to the direction and authority of supervision, and her
unwillingness to return or even discuss the matter with Turpin was provocative
and insubordinate. Since Bernal had no way to restrain or to confront Turpin as
she went on her way to her car and home, a gesture of the kind reported by
Battaglia would not necessarily be unexpected from a percentage of persons.
Because of the conflict between Turpin and Bernal, I concluded that Bernal's
incentive to do what Battaglia asserted was high, and thus that he more likely
than not succumbed to the temptation to "flip her off."
Third, the testimony of Shipp harmed more than assisted in establishing the
credibility of Bernal's story on what happened. Shipp admitted that he changed
his story between what he told Mr. Ryan of the Union and what he testified at the
hearing. Further, under examination by the arbitrator, Shipp could not affirm
whether he signed Bernal or Bernal signed him first, even though in a written
statement Shipp asserted that Bernal followed him, after Shipp laughed (J 2, p.
49). But Bernal's statement asserts that Bernal made the peace sign first, and
Shipp responded (E 1). Also, Shipp admitted that it had been several months
since the incident and that he probably had changed what he recalled about the
incident.
Finally, I have discounted the remaining allegations about disrespectful conduct
of Bernal towards Turpin. Clearly this was a two way street, with problems of
performance on the part of Turpin, whose conduct in the parking lot was
anything but cooperative. Any comments about Turpin being a "bitch," if true,
were untimely raised, and even if true fails to demonstrate that Bernal did or did
not gesture inappropriately towards Turpin on June 3. Just because a supervisor
fails to act exactly as each
carrier, and in this case, Turpin and Battaglia, would desire does not mean that
a violation of the Joint Statement or of Articles of the Agreement has occurred.
Thus, I concluded that the evidence was sufficient to conclude that more likely
than not, and thus by a simple preponderance of the evidence, Bernal did make
an obscene and inappropriate gesture toward Turpin from the loading dock at
the Rose Station on June 3, 1996.
This arbitrator examined the concerns of the parties as expressed in the Joint
Statement in the North Hollywood decision, as noted above. Relevant here was
his observation that "the nature and character of the relationship between and
among employees" is a matter of serious concern. The Joint Statement calls for
a mutual respect of one for another, a recognition of a sense of dignity of person
as aspects of that relationship, and amplification of Section 115.4 of the M-39 on
the maintenance of an atmosphere of mutual respect. It follows that the
atmosphere of mutual respect in the work place is a preface to and the
preventive tool for the absence of violence and threats of violence (emphasis
added). The lack of treatment with dignity and respect of one to another is the
precedent to violence. In this sense the absence of an atmosphere of mutual
respect, a failure to treat one another with dignity, respect and fairness
constitutes a serious and consequential deficiency in behavior. The parties
recognized this in affirming in the Joint Statement that "those who do not treat
other with dignity and respect will not be rewarded or promoted. Those whose
unacceptable behavior continues will be removed from their positions."
C# 17589
Arbitrator: R. Maher
Date of Decision: 12/13/1997
Issue
"Whether the USPS violated Article 14 of the National Agreement and the Joint
Statement on Violence in the Workplace and District policy? And if so, what shall
be the remedy?"
Opinion
The Arbitrator having heard the testimony of all the witnesses regarding the
alleged incident of 11/16/96, finds supervisor Spost did exceed normal and
customary instruction to subordinate, carrier Ortner. The Arbitrator is convinced
Spost did yell, scream, jump around the Grievant and bang on the outside of the
tub the Grievant was pushing at the time of the incident, and that Spost's tirade
continued into the facility. This incident was witnessed by craft employees and
customers. The Arbitrator finds Spost's actions equate to an unjust and
unwarranted exercise of his supervisory powers and were meant to embarrass
and degrade the Grievant and resulted in emotional injury and stress to the
Grievant.
The Arbitrator finds Spost's actions towards the Grievant are violative of Article
14 Section 1 (14.1), "It is the responsibility of management to provide safe
working conditions in all present and future installations and to develop a safe
working force..." The Arbitrator finds Spost's method in dealing with the Grievant
and the resultant stress and harassment the Grievant felt as a result of Spost's
actions were unwarranted and thereby created an unsafe working environment.