Question

This matter of arbitration stems from an indictment of Thomas Allen for one count of arson– first degree and ten counts of burglary in Quitman County, Mississippi, on March 28, 1999. In a letter dated March 30, 1999, Billy Como, postmaster, wrote: This is written notice that you have been removed from employment with the Postal Service. This action is being taken in accordance with Article 16 of the Agreement. There is reasonable cause to believe you have committed a crime for which a sentence of imprisonment may be imposed. Specifically, by the indictment dated March 28, 1999, you were indicted in the Superior Court of Quitman County for one count Arson–First Degree and ten counts of Burglary. These aforementioned charges are so egregious in nature that retaining you in postal employment would not be in the best interest of the Service. In a letter dated April 9, 1999, Mr. Jesse G. Bolton, attorney for Mr. Allen, wrote to Walter E. Flatten, human resources manager: I have been asked to assist Mr. Allen in regard to his removal from the Postal Service. Although there has been an indictment of Mr. Allen by the Superior Court of Quitman County, MS, it is probable that the indictment has overstated the underlying facts and it is also possible that some or all of the charges could be dropped or minimized. The arraignment date in the case was set for March 28th, 1999, and this was suspended or continued on an indefinite basis. Mr. Allen is 47 years old and has never been charged with any criminal offense involving moral turpitude. He has only had one speeding ticket, in the year 1968, while in the service of the United States Air Force. His character and reputation in the community in which he lives are exceptional, and there is a reasonable possibility that a sentence of imprisonment will not be imposed. From the earliest days of the charges, restitution was made by the subjects and accepted by the affected party or parties. The hunting cabin for which the one count of arson was made, according to my information, was unoccupied at the time, and restitution for damage to that house has largely been accomplished by and through the replacement of the house and acceptance of the same by the owner. The only reason that rebuilding the cabin has been delayed is because the accused parties have been doing all the physical labor themselves.

On April 13, 1999, Mr. Allen filed the following Grievance:

1. Nature of Grievance: (Be specific: what, where, when, etc.) This is a Step 2 Appeal filed on behalf of Thomas Allen, a reg. carrier at the Marks, Mississippi, post office, from an adverse decision rendered at Step 1. Mr. Allen was issued a Notice of Removal on March 30, 1999 in accordance with Article 16 of the National Agreement. Mr. Allen received the letter on April 4, 1999.

2. Contract Violation: This action is a violation of Article 16 of the National Agreement.

3. Corrective Action Requested: The Union respectfully requests that the Notice of Removal be rescinded and the Grievant be made whole for all lost wages and benefits. The facts do not reveal reasonable cause to believe the Grievant is guilty. On April 21, 1999, Mr. Flatten wrote the following letter to Mr. Bolton. This letter stated: In accordance with Article 1, Section 1 of the National Agreement, the Rural Carriers’ Union is the exclusive bargaining representative for Mr. Allen. As such, I cannot grant your request for a summary outline of the evidence the Postal Service has obtained. In accordance with Article 15, Section 3, Step 1 of the National Agreement, Mr. Allen has a contractual right to file a grievance on any action taken by the Postal Service. In the event Mr. Allen exercises this right, he would be represented by the Rural Carriers’ Union.

Issue

Relevant Articles of the Agreement Article 16—Discipline Procedure

Section 1. Statement of Principle In the administration of this Article, a basic principle shall be that discipline should be corrective in nature, rather than punitive. No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage, intoxication (drugs or alcohol), incompetence, failure to perform work as requested, violation of the terms of this Agreement, or failure to observe safety rules and regulations. Any such discipline or discharge shall be subject to the grievance-arbitration procedure provided for in this Agreement, which could result in reinstatement and restitution, including back pay. When there is reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed, the advance notice requirement shall not apply and such an employee may be immediately removed from a pay status.

Position of the Parties- The Agency:

Management stated that Mr. Allen was indicted on one count of arson in the first degree and 10 counts of burglary by a Grand Jury of Quitman County, Mississippi, on March 28, 1999. Each of the eleven counts carries a maximum sentence of 20 years’ imprisonment as provided by Mississippi State Law. The total would equate to 220 years’ imprisonment for the alleged crimes if he were convicted and given the maximum sentence. The Postal Service obtained a copy of this indictment and questioned Mr. Allen. After he was removed from employment, a letter from Mr. Jesse G. Bolton, attorney at law, on Allen’s behalf was forwarded to Mr. Flatten. TManagement stated that Billy Como, postmaster, had obtained a copy of the indictment on the advice of Labor Relations. Allen was given an opportunity to respond to the indictment and did not deny any of the charges. Mr. Como testified that he had copies of two newspaper articles from adjoining counties that pertained to Allen’s situation before issuing him his removal notice.

Management admitted that Mr. Como initially testified that he had been directed by Management to take this action and would not have done so if he had not been directed. On cross-examination, Como was asked for whom he worked. Under oath, he said his boss was Mr. Jimmy Whitestone, manager of Post Office Operations. Whitestone directed Como in the performance of his duties to do what was expected of him. Labor Relations has a responsibility to advise Management officials of the proper procedures to take in disciplinary matters that are consistent with postal policies and contractual procedures. Mr. Como stated that Labor Relations advised him on how this type of situation is normally handled. Mr. Como read Article 16 in the National Agreement, and he was satisfied that he complied with Article 16. Mr. Como testified that he felt like Allen and other employees of the Marks Post Office were family. This explained Como’s reluctance to remove Allen. Como stated that he had no problem upholding Postal Service’s policies once it was explained to him that the action taken was consistent with the postal policy on how to handle situations wherein an employee had been indicted for a crime for which a sentence of imprisonment may be imposed. Como issued the removal based on the indictment after he gave Allen an opportunity to respond.

Management stated that this Grievance should still be denied if this higher form of just cause is applied. Arbitrators have ruled consistently that the ‘‘reasonable cause’’ standard is the only proof required before removing an employee for criminal considerations. Arbitral jurisprudence has established the reason for the position taken by Management. Management closed by stating: Management has stated consistently that management based its decision to remove the grievant on an indictment. Proof of the grievant’s guilt, innocence, former standing in the community, or whether restitution has been made is irrelevant to this proceeding. What is relevant is, whether Management had substantive information in hand, prior to removing the grievant. Based on arbitral precedent, an indictment has been deemed to be the proper information on which one should base a decision of this nature.

The Union:

The Union claimed that Billy Como, postmaster and Allen’s immediate supervisor, testified that it was not his decision to remove Thomas Allen. Como testified that he did not notify the Labor Relations office in Jackson, Mississippi, after Allen was indicted. The Labor Relations office was informed about the indictment by a relative of Mr. Flatten, who attended a church service in Marks. When the Labor Relations office learned of Mr. Allen’s indictment, it directed Como to obtain a copy of the indictment and forward it to Jackson. Como dutifully obtained a copy of the indictment, which is public record. Como testified that, if it had been up to him, he would not have removed Allen, and Allen would still be working. Como testified that he did not draft the notice of removal; he was told by the Labor Relations office to sign and deliver it to Allen. Como clearly indicated that this entire matter was handled by the Labor Relations office in Jackson, Mississippi. The Union stated that where the imposition of discipline is not recommended or initiated by the employee’s first-line supervisor, the discipline cannot stand. When higher-level authority does more than advise and when it takes over the decision-making role and eliminates the contractual responsibility of local supervision—and then concurs in its own decision—a substantive due process violation occurs. Such violation cannot be overlooked as a mere technicality. The bi-level disciplinary procedure provides a unique protection for employees. It cannot legitimately be disregarded, and the employer’s neglect to follow it creates a breach of contractually established due-process requirements of such importance as to require that the resulting discipline be overturned. The Union argued that the Postal Service did not have just cause to remove Thomas Allen. The record reflects that the Postal Service did not carry its burden in showing that just cause existed for Allen’s removal. Throughout the Grievance Procedure and at the hearing, the Postal Service took the untenable position that, because Allen had been indicted, the Postal Service was privileged to remove him pursuant to Article 16 of the National Agreement. Article 16 only allows the Postal Service to immediately remove an employee from pay status when there is ‘‘reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed.’’ The Postal Service has taken the position that standards of just cause did not apply to this case, and the Postal Service made no serious efforts to show that just cause existed.

The Postal Service was unable to show that Allen’s indictment poses a threat to himself, his co-workers, or his customers or that the image of the Postal Service will be tarnished by his employment. Mr. Allen is well liked, the community wants him back on his route, and the image of the Postal Service will not suffer if he remains on the job. The Union presented three witnesses on behalf of Mr. Allen. Mr. Willie Andrews, a psychiatric social worker and Quitman County Board of Education member, testified that Allen was an excellent carrier who often went beyond the call of duty. Andrews stated that he was happier with his mail service when Allen was carrying the route. Mr. Andrews had known Allen for 10 or 15 years and stated that he was shocked when he learned of Allen’s arrest and indictment. He indicated that the Postal Service’s image would be improved if Allen were returned to work. Mayor E.L. Elton testified that he has known Allen all of his life and was in disbelief when told that Allen had been indicted. Mr. Elton was a very satisfied customer and would like to see Allen return to his duties. As mayor, Mr. Elton was in a unique position to gauge community sentiment and testified credibly that there was ‘‘very strong support’’ for Allen’s return to work. He believes that the image of the Postal Service will not be tarnished if Allen returns to work. Ms. Hortense Balk, a lifelong Marks resident, owned the property that was destroyed in the fire that Allen is accused of intentionally setting. The destroyed property was a hunting cabin that Ms. Balk rented to hunters. Ms. Balk was shocked when she learned that Allen had been indicted because she had known Allen all of his life. Ms. Balk testified that she did not press charges against Allen and noted that Allen had already rebuilt the hunting cabin. Ms. Balk testified that he did such a great job that she thought about moving into it. The Union noted that the fact that Allen made restitution to Ms. Balk should not be construed as an admission that he is guilty of a crime for which a sentence of imprisonment can be imposed. If anything, Allen’s gesture reflects favorably on his character. Despite the personal loss felt by Ms. Balk, she does not believe that Allen should lose his job. The Postal Service did concede that if the indictment is dropped or Allen is acquitted in a trial, he will be returned to work immediately. The Postal Service must do its part in managing its employees and imposing discipline where appropriate. The Postal Service has ceded all judgment to the criminal process and to a district attorney who has sat on this indictment for almost ten months with no specific date set for trial. During these ten months, Mr. Allen has been an effective postal employee, and no other employee’s performance has been affected. The Union stated that the Postal Service had an affirmative duty to investigate on learning of the indictment but did not. The Postal Service is required in cases of alleged off-duty misconduct to determine whether that alleged misconduct would affect the integrity of the operations of the Postal Service. If the Postal Service had been able to offer credible testimony in this regard, it may have met its burden under just cause. However, the Postal Service made no efforts to address these issues.

The Union concluded:

The removal of Thomas Allen was not properly initiated by Mr. Allen’s supervisor, Postmaster Como. Instead, the removal was forced on Postmaster Como by the Labor Relations office in Jackson. This is a clear violation of Article 16 of the National Agreement. There is no exception that allows the Postal Service to ignore the judgments and desires of its front line supervisors, even in cases where employees have been indicted for off-duty misconduct. The record reveals that the Postal Service failed to meet its burden to show that it had ‘‘reasonable cause to believe that Mr. Allen was guilty of a crime for which the sentence of imprisonment could be imposed.’’ The Postal Service also failed to show that removal was for just cause. The record reflects that Thomas Allen is an Air Force veteran and an exemplary 18-year postal employee. He does not pose a threat to his postmaster, his coworkers, or his customers. Indeed, these people want him back on the route. The Postal Service never had and does not now have a valid reason for removing Allen. The Union requested that the Arbitrator hold the Postal Service to its contractual promise that all removals be supported by just cause. As none exists here, it is requested that the grievance be granted and that Mr. Allen be reinstated with full back pay with interest and benefits to the date of his removal.

Questions

7. What level of proof should be used in this matter? Why?

8. Weigh the evidence and consider the burden of proof and the levels of proof. Be the arbitrator and support your decision.

Answer 1

7. Allen was removed from his job without any adequate cause but such based on speculation that he might be convicted and will be sentenced for a crime. Allen has been removed without any proof and his postmaster has been forced by the labor relation office. To prove that Allen is guilty of the crime and to make his release justified, the following types of proof are needed-

1. The crime has been done during employment

2. The employer has made an investigation about the case before deciding to remove him from employment and he has got sufficient evidence of treating him guilty.

3. There is concrete proof that Allen is guilty of the crime.

4. His conduct has done a lot of harm to his employer

5. His past conduct is also very bad

6. He comes to work in an intoxicated state

7. His action is a fraudulent or misrepresentation of his employers.

8. He has done the action intentionally, to harm others.

9. Whether the type of crime is enough to break the employment contract

These above proofs are necessary to make Allen guilty of his crime. As his removal can not be proven as Just cause since he was removed immediately without any prior notice of removal. His crime is also not proven He was removed based on doubt that he might be sentenced for a crime. His termination without notice for just cause have to be legally proved by the employer and for doing this any of the above proof has to be proven. Here the level of proof is not beyond the first level of proof. Here the action has been taken based on doubt. The court needs third level concrete proof to make the accused guilty.

8. There is not enough evidence here to prove Allen guilty of the crime. The burden of proof here is at the initial level as there is no such condition since Ms. Balk whose hunter's house has been destroyed by fire and Allen is blamed to have set fir intentionally does not believe Allen to be a culprit and does not not want Allen to be removed from his job. Here there is no evidence to prove Allen guilty of the crime. The level of proof is also of the first level that no proof is there beyond Doubt. Looking at Allen's behavior and past conduct, no proof is there to make him a culprit. Everybody wants him back at his work and does not think his dismissal as fair and his comeback will hinder the status of the post department. Everybody thinks that he is a good person. Hence, as an arbitrator, I would recommend Allen to be again posted in his department with the salary and compensation for the period, head missed his duty as recommended by Union.