Interviewing Postal Inspectors, Obtaining Their ... - NALC Branch 908

Volume 2 Issue 2 May 1998 

A Publication of the Contract Administration Unit and Education Department - National Association of Letter Carriers, AFL-CIO 

156#.052'%6145g16$18'6*'#9 

Interviewing Postal Inspectors, Obtaining Their Notes 

$ 

dvocates who have dealt with 

postal inspectors know that inspectors 

often have an exaggerated 

sense of their place in the world. 

This often comes up in the 

grievance procedure and arbitration, 

where many representatives 

experience the “postal inspector attitude”—that 

somehow the Postal 

Inspection Service is “above the 

law.” 

After all, a postal inspector is a 

special type of police officer. Inspectors 

carry guns and badges, investigate 

crime, and otherwise act 

as a special postal police force. 

Postal inspectors are secretive and 

they usually resist union attempts 

to delve into their methods, their 

notes and the details of their investigations. 

Union representatives who try 

to interview postal inspectors get 

the “Inspection Service brush-off.” 

Secretive explanations are given for 

inspector stonewalling: an interview 

would improperly reveal police 

sources and methods, or an interview 

could compromise an ongoing 

investigation. 

Postal inspectors also attempt 

in many cases to shield their notes 

from outside examination. Union 

representatives often are refused inspectors’ 

notes with an explanation 

that, “You have the IM (investigateive 

memorandum). That’s what 

management relied upon in issuing 

the discipline. That's all you need.” 

756 +-' 

0; 6*'4 #0#)'4 

Postal inspectors are not, however, 

above the law—and that includes 

the law of the grievance procedure 

and arbitration. Rather, when they 

act as agents of management—most 

#0&$11-5#0&#07#.5U 

When are They Part of the Contract 

, 

magine this scenario: You, the 

NALC advocate, are arguing a 

case of a delayed special inspection 

before regional Arbitrator Newt 

Newbie, who is a recent addition to 

the regular panel. As you begin to 

introduce Section 271.g of the M-39, 

the management advocate objects, 

saying that the M-39 is not part of 

the National Agreement and that the 

union cannot rely on it. 

You are tempted to respond: 

“Poppycock, Mr. Arbitrator! Everybody 

knows that all portions of USPS 

(Continued on page 2) 

Handbooks or Manuals ‘directly relating 

to wages, hours and working 

conditions’ are incorporated into the 

National Agreement by Article 19, 

and that 271.g is thus enforceable in 

this proceeding.” 

But then it occurs to you: Does 

“everybody” actually know this 

From the way Arbitrator Newbie is 

reacting, he doesn’t seem to have a 

clue! So how can you prove that the 

M-39 is not “merely an internal 

management document,” as the 

(Continued on page 5) 

Inside... 

Joint Statement Update - Filing Grievances Under Article 14, 

USPS “No Defense” Argument .... .......... ..... ..... ..... .... ..... ..... ..... .... ..... ..... . 7 

Snow Upholds Article 29 Protections ......... ..... ..... ..... .... ..... ..... ..... .... ..... ..... 10 

Remedy for Delayed Adjustments - Proof of Harm . ..... .... ..... ..... ..... .... ..... ..... 11

NALC Arbitration Advocate Page 2 

Volume 2, Issue 2 May 1998 

156#. 052'%6145 TTT 

(continued from page 1) 

commonly in discipline cases—they 

are no different from any other 

manager. This bears repeating: 

Postal inspectors have no special 

status in the grievance procedure or 

arbitration. Rather they are, for all 

intents and purposes, the same as 

other postal supervisors and managers. 

For advocates and other union 

representatives, this means that 

postal inspectors may be interviewed 

prior to arbitration, and in 

fact at any time during the processing 

of the grievance. Postal inspectors 

have no special rights to avoid 

interviews with investigating union 

representatives even though they 

often attempt to resist questioning 

until they are called to testify at arbitration. 

Moreover, management may 

not use the investigative memorandum 

as a shield against further inquiry 

into the detailed facts of the 

investigation. The investigative 

memorandum is a hearsay statement—an 

out-of-hearing statement 

that certain material facts are true. 

The union has the right to examine 

the facts underlying hearsay statements, 

or to insist that such statements 

either be excluded from the 

hearing or be given very little 

weight. Like any hearsay statement, 

an investigative memorandum 

is inherently unreliable as evidence 

unless it is corroborated by 

other, reliable evidence. 

Typically a postal inspector testifies 

at an arbitration hearing to 

provide the corroboration for the 

investigative memorandum. However, 

this testimony comes very late 

in the grievance process and affords 

union advocates no opportunity 

to prepare before the hearing. 

NALC representatives at earlier 

stages of the grievance procedure 

also have the right to examine the 

facts that stand behind the investigative 

memorandum. So postal 

inspectors must be made available 

for interviews, and must answer all 

potentially relevant questions put 

to them by shop stewards, advocates 

and other union representatives. 

NALC representatives also 

have the right to examine the notes 

made by postal inspectors during 

the course of their investigations. 

For instance, 

the representative 

may ask a 

postal inspector 

for all notes 

made in an investigation, 

including 

notes 

of interviews 

with witnesses. 

Furthermore, 

inspectors must 

reveal the 

names of people 

with whom 

they spoke and what those people 

said even if this information has not 

been recorded in the IM or in notes. 

Any of these original sources may 

provide information which is helpful 

to a grievant although it was excluded 

from or “filtered” by the investigative 

memorandum . 

Many union representatives, especially 

shops stewards, may be 

surprised to learn that they have 

the right to interview postal inspectors. 

However, this right is well established 

in regional arbitration 

precedent and in grievance settlements 

at the national level. 

'..g 56#$.+5*'& 

7.'5 

In a 1987 case decided by regional 

Arbitrator Joseph F. Gentile, 

a letter carrier was discharged for 

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allegedly removing marked quarters 

from test letters. Two postal 

inspectors had prepared the test 

mailing. NALC representatives attempted 

to interview the postal inspectors 

but were refused at each 

step of the grievance procedure. A 

second grievance filed to protest 

that refusal. During the discussion 

of the second grievance, the postmaster 

claimed that he had no jurisdiction 

over postal inspectors, and 

the Step 3 answer stated that Inspection 

Service 

investigative 

techniques 

“are not subject 

to automatic 

disclosure.” 

The 

two grievances 

were combined 

for hearing. 

Arbitrator 

Gentile agreed 

to hear the 

procedural issue 

first. The union argued that the 

Postal Service violated several sections 

of the National Agreement 

when it refused to make the postal 

inspectors available for the interview: 

♦ Article 15, Section 2, Step 2(d) 

requires the employer to “make a 

full and detailed statement of facts 

and contractual provisions relied 

upon.” 

♦ Article 17, Section 3 states, 

“The . . . Union representative 

properly certified in accordance 

with Section 2 above may request 

and shall obtain access through the 

appropriate supervisor to review 

the documents, files and otherrecords 

necessary for processing a 

grievance or determining if a 

grievance exists and shall have the 

right to interview the aggrieved 

employee(s), supervisor and wit- 

(Continued on page 3)



Gentile turned aside NALC's 

argument that its defense of the 

grievant had been so prejudiced by 

management's violation that the entire 

removal should be set aside. 

The arbitrator instead ordered 

USPS to make the inspectors available 

for interviews prior to a hearnesses 

during working hours. Such 

request shall not be unreasonably 

denied .” 

♦ Article 31, Section 3 requires 

the Postal Service to supply the 

union with “all relevant information 

necessary for collective bargaining 

or the enforcement, administration 

or interpretation of this 

Agreement, including 

information 

necessary 

to determine 

whether 

to file or to 

continue the 

processing of a 

grievance under 

this Agreement. 

Arbitrator 

Gentile ruled 

that the Postal 

Service's refusal 

to make 

the inspectors available for an interview 

had violated the National 

Agreement. The arbitrator examined 

the circumstances surrounding 

the removal, noting that one inspector 

had stated in the investigative 

memorandum that he had recovered 

the two quarters during an interview 

with the grievant. Levak 

ruled that the inspector “was 

clearly a percipient witness to the 

discovery of the two coins,” and “a 

critical witness to the controlled 

mailing which triggered the interview.” 

The arbitrator found that 

the postal inspectors possessed essential 

information in the case, justifying 

NALC's request for interviews: 

Absent the testimony of the 

two Postal Inspectors, the Service 

has no case. As argued by 

the NALC, this testimony is both 

material and pivotal to the processing 

of the grievance and to 

the ultimate outcome. 

#0#)'/'06 

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Arbitrator Gentile also cited a 

national-level settlement—M-00225, 

March 10, 1981—which stated as 

follows: 

1. The Postal Service agrees 

that the steward who is processing 

and investigating a 

grievance shall not be unreasonably 

denied the opportunity 

to interview 

Postal Inspectors 

on appropriate 

occasions, 

e.g., with 

respect to any 

events actually 

observed by 

said inspectors 

and upon 

which it a disciplinary 

action 

was based. 

2. The Postal 

Service and the 

NALC disagree 

as to whether in other circumstances 

such as those in the 

above-captioned case, the 

stewards it should be given the 

opportunity to interview the involved 

Inspector. 

3. The parties agree that the 

above-captioned grievance will 

be withdrawn and that the disciplinary 

action taken against the 

employee in whose behalf of 

the stewards had requested in 

the interview will also be withdrawn. 

Additionally, the employee 

in question will be 

granted $25.00 assessed for 

the lost parcel. These withdrawals 

are non-precedential. 

ing on the merits. He also granted 

a union request that the Postal Service 

pay back pay to the grievant 

from the date of the removal 

through the date of the hearing. 

Soon after the Gentile case regional 

Arbitrator Thomas F. Levak 

also ordered management to make 

a postal inspector available for a 

union interview. C-10115, October 

28, 1997. His analysis bears reproduction 

here: 

First, the Arbitrator agrees with 

the analysis and conclusions of 

Arbitrator Gentile. The Service's 

failure to accord the 

Grievant the right to interview 

the two Postal Inspectors prior 

to the Steps 2 meeting constituted 

violations of the National 

Agreement articles 15.2, Steps 

2(d), 17.3 and 31.2 [now 

31.3—Ed.]. Postal Inspectors 

constitute witnesses within the 

meaning of article 17.3 whenever 

oral or written statements 

of a Postal Inspector are relied 

upon by management, in whole 

or in part, in reaching a disciplinary 

decision. 

Since, in criminally-related 

cases, the Service ordinarily is 

entitled to utilize Postal Inspectors 

as their investigative 

agency, and is not obligated 

under due process considerations 

to conduct a separate, independent 

investigation, it necessarily 

follows that the Union 

is entitled to interviewed those 

investigated agents during the 

grievance process. Absent 

such a right, the Union would 

be left with nothing but a written 

investigative memorandum 

itself and a managerial disclaimer 

that, “I just relied on the 

investigative memorandum.” 

It goes without saying that an 




investigative memorandum will 

never contain all of the observations 

and events discovered by 

the investigator, and that observations 

and events—and the 

manner in which such were observed 

or not observed—may 

be crucial to the Union's defense. 

The Union is entitled to 

question the Postal Inspectors 

on all their observations and 

also on the manner in which 

their surveillance was conducted, 

in order to determine 

whether it can be considered reliable. 

Arbitrator Levak issued an interim 

award ordering USPS to 

make the inspector available for an 

NALC interview, retained jurisdiction 

and reconvened the case several 

weeks later for hearing on the 

merits of the removal. He also followed 

Arbitrator Gentile by awarding 

the grievant back pay from the 

date of his removal through the 

first hearing date. 

When the hearing reconvened 

Arbitrator Levak learned that USPS 

had flouted his award by refusing 

to make the inspector available for 

an interview and refusing to provide 

NALC with a copy of the inspector's 

notes. Management argued 

that it had relied solely on the 

investigative memorandum in issuing 

the removal, which it had provided 

to the union. 

The arbitrator dismissed the 

discipline and ordered the grievant 

reinstated with full back pay, without 

a hearing on the merits, because 

of the Postal Service's due process 

violations. Arbitrator Levak's reasoning 

lays out the core due process 

rights which management had 

violated: 

. . . The Arbitrator construes 

and interprets just cause to include 

the due process requirement 

that a removed grievant 

has the right, through the union, 

to effectively examine and cross 

examine her accuser; that notes 

taken by a service manager or 

by a Postal Inspector relative to 

removal are crucial to such an 

effective the examination; and, 

that the denial of those notes 

therefore denies a grievant her 

rights under Article 16. 

Second, when the Service utilizes 

Postal Inspectors to conduct 

an investigation in a removal 

case, it cannot be allowed 

to simply assert the defense 

that it relied only upon the 

formal investigative memorandum. 

The term “statement of 

facts relied upon,” as used in 

the National Agreement, cannot 

be construed so narrowly. A 

Postal Inspector, in a discipline 

case, acts as the agent of the 

Service, and the Union is entitled 

to examine and explore all 

the facts within the knowledge 

of the Inspector, not just those 

favorable to the Service. In 

short, a Postal Inspector is to 

be treated as any other witness, 

and the Service's position is 

therefore contrary to the National 

Agreement. 

Arbitrator Levak further noted 

that management was relying solely 

on the evidence supplied by the 

Postal Inspectors in the case, and 

had not conducted an independent 

investigation. If management had 

conducted its own, separate investigation, 

the arbitrator explained, he 

would have excluded the Inspection 

Service testimony and allowed 

management to try to prove its case 

through other evidence. 

The principles set forth by Arbitrator 

Levak were reaffirmed last 

year in case decided by regional Arbitrator 

George V. Eyraud. 

(C-16455, March 1, 1997). In that 

case a letter carrier was removed 

for allegedly engaging in inappro- 

priate conduct with a patron. The 

union was refused an interview 

with the postal inspector who interviewed 

the patron, and was told 

not to interview the complaining 

witness. Nor did management provide 

other documentation requested 

by the union in a grievance 

procedure. 

Arbitrator Eyraud cited Arbitrator 

Levak in ruling that, “the 

Postal Inspectors were witnesses 

under article 17.3 and should have 

submitted to interview.” He ruled 

that the various procedural defects 

in the case: 

... amount to a denial of due 

process to the Grievant and all 

are violative of the Labor Agreement. 

Any one of the above 

enumerated violations might be 

fatal to the Removal of Grievant 

here. Certainly, in their totality, 

they amount to a lack of due 

process and render the removal 

of Grievant to be invalid and 

due to be set aside. 

The arbitrator sustained the 

grievance, ordering the Grievant reinstated 

and made whole. 

#6+10#. '66.'/'06 

A recent national-level settlement 

has reaffirmed the postal service's 

obligation to release postal inspectors’ 

notes and tapes to NALC. 

M-01308, Prearb, July 14, 1997. It 

states: 

The issue in this grievance 

is whether management violated 

the National Agreement by 

failing to turn over requested 

postal inspection service notes 

and videotapes during the investigation 

of a grievance. 

During our discussion, it 

was mutually agreed that the 




following constitutes full and final 

settlement of this grievance: 

The USPS understands its 

obligation to release properly requested 

information to the union 

that is relevant and necessary 

for collective bargaining and/or 

contract administration. 

In this case, it appears that 

the notes and tapes relied upon 

to prepare the investigative 

memorandum should have been 

made available to the union. 

&8+%' 

Advocates preparing for a hearing 

should remember that postal inspectors 

are police, and that many 

police officers are very experienced 

and effective as witnesses. On 

cross-examination they seldom 

ramble self-destructively. They 

tend to deliver damaging answers 

to union advocates who fail to focus 

their questions tightly. An advocate 

should not expect to be able 

to “trip up” an inspector on crossexamination. 

A wiser approach is to rely instead 

on solid pre-hearing research 

including a pre-hearing investigative 

interview with inspectors and 

a thorough review of the inspectors' 

notebooks, tapes, etc. At the 

hearing, cross-examination should 

be very tightly focused and very 

short. An advocate should not 

engage in verbal chess with a 

postal inspector and should avoid 

feeding an inspector open-ended 

questions, or permitting an inspector 

to repeat his or her direct 

testimony. 

When making arguments for 

the release of all potentially relevant 

inspector notes, tapes and so 

forth, advocates should use the 

due process principles which Arbitrator 

Levak articulated so well. 

These principles are taken largely 

from the law of criminal procedure, 

which guarantees the accused 

powerful rights to obtain 

information from prosecutors. In 

general, there are three reasons 

why NALC has a right to obtain 

notes and other data underlying a 

postal inspector's investigation: 

1. The data may contain what criminal 

lawyers call “exculpatory” 

material—that is, information 

which may tend to show the 

grievant is not guilty as 

charged (not culpable). 

2. The data may contain material 

which would tend to undermine 

the Postal Inspector's credibility if 

called to testify. For instance, the 

notes may show that an inspector's 

interview of a key witness 

was very short, that the questions 

were poorly phrased, that 

the answers were poorly articulated, 

... or any number of 

imaginable problems that a 

union advocate needs to know. 

3. The presence or absence of exculpatory 

material may assist NALC in 

determining whether to pursue a 

grievance to arbitration. As 

noted above, Articles 17 and 31 

guarantee union representatives 

the right to information 

necessary to determine whether 

a valid grievance exists. 

Finally, advocates should keep 

in mind that when postal inspectors 

supply the basis for discipline, they 

are no different from any other 

management witness. Badges and 

guns notwithstanding, they have no 

right to withhold anything of potential 

value to a union representative 

developing a defense. It is the 

NALC advocate's job to ensure that 

postal inspectors do not operate 

“above the law.” † 

#0&$11-5 n #07#.5 TTT 

(continued from page 1) 

USPS advocate is arguing, but 

rather fully enforceable as if it were 

part of the National Agreement 

What authoritative rulings have established 

that certain handbooks or 

manuals are, or are not, enforceable 

under Article 19 

Unfortunately, this scenario is 

not as preposterous as it sounds. 

On the contrary—not only do management 

advocates make this argument 

from time to time, but in all 

too many cases they get arbitrators 

to agree with them. Certain uninformed 

arbitrators have ruled, for 

example, that the special route inspection 

provisions in M-39, Section 

271.g and the limited duty protections 

in ELM 546.141 are merely 

management documents which are 

not part of the contract and thus 

not enforceable through the 

grievance-arbitration procedure. 

Those arbitrators have been flat 

wrong, of course. It is wellestablished 

that those, and many 

other handbook and manual provisions, 

are fully enforceable as 

though they were contract provisions. 

NALC advocates simply 

need to provide arbitrators with the 

appropriate proof. This begins, of 

course, with the first paragraph of 

Article 19: 

Those parts of all handbooks, 

manuals and published regulations 

of the Postal Service, that 

directly relate to wages, hours 

or working conditions, as they 

apply to employees covered by 

this Agreement, shall contain 

nothing that conflicts with this 

Agreement, and shall be continued 

in effect except that the 

Employer shall have the right to 

make changes that are not inconsistent 

with this Agreement 

and that are fair, reasonable, 

and equitable. This includes, 




but is not limited to, the Postal 

Service Manual and the F-21, 

Timekeeper's Instructions. 

Furthermore, the new NALC- 

USPS Joint Contact Administration 

Manual makes Article 19's meaning 

even more explicit: 

Handbooks and Manuals: Article 

19 provides that those 

postal Handbook and Manual 

provisions directly relating to 

wages, hours, or working conditions 

are enforceable as 

though they were part of the 

National Agreement. Changes 

to Handbook and Manual provisions 

directly relating to 

wages, hours, or working conditions 

may be made by management 

at the national level 

and may not be inconsistent 

with the National Agreement. 

A challenge that such changes 

are inconsistent with the National 

Agreement or are not 

fair, reasonable, or equitable 

may be made only by the 

NALC at the national level. 

(Emphasis added.) 

*#65 0X 76 

Although this language seems clear, 

problems sometimes occur because 

the Postal Service has published so 

many handbooks and manuals that 

few people are familiar with all of 

them. There are literally hundreds 

of thousands of pages of published 

handbooks, manuals, directives, instructions 

and guidelines on postal 

library shelves. 

Article 19 does not encompass 

every single one of these handbooks, 

manuals and other documents—even 

where one purports to 

deal with wages, hours or working 

conditions. Which ones are, and 

are not, covered by Article 19 

First, only national-level USPS 

publications may be covered by Article 

19. So all of the local policies, 

Area directives, District guidelines 

and so forth are excluded. 

Second, the national parties 

have long agreed that certain handbooks 

and manuals are covered by 

Article 19. Here are the ones most 

commonly cited: 

ASM 

ELM Employee and Labor Relations 

Manual 

F-15 Travel and Relocation 

F-21 Time and Attendance 

F-22 PSDS Time and Attendance 

EL-301 Guidelines for Processing 

Personnel Actions 

EL-311 Personnel Operations 

M-39 Management of Delivery 

Services 

M-41 City Delivery Carriers Duties 

and Responsibilities 

Administrative Support 

Manual 

DMM Domestic Mail Manual 

DMMT Domestic Mail Manual 

Transition Book 

POM 

Postal Operations Manual 

Some publications are not covered, 

however. Problems can arise 

when management seeks to enforce 

one of those non-covered documents, 

and NALC argues that the 

purported “handbook” conflicts 

with the National Agreement, or 

simply has no standing as a contractual 

document. For instance, 

National Arbitrator Howard 

Gamser ruled in C-00937 

(December 27, 1982) that the EL- 

501, Supervisor’s Guide to Attendance 

Improvement, was not “a handbook 

having the force and effect of .. a 

document issued pursuant to Article 

19.” 

Here is a short list of the most 

frequently encountered postal 

“handbooks” not covered by Article 

19 (there are others, of course): 

EL-501 Supervisor’s Guide to At- 

tendance Improvement 

EL-921 Supervisor’s Guide to Handling 

Grievances 

EL-401 Supervisor’s Guide to 

Scheduling and Premium 

Pay 

&8+%' 

By citing the proper authorities, 

an NALC advocate can prevail 

against the daunting combination 

of misleading management arguments 

and clueless Arbitrator Newbies. 

First, advocates should cite 

the Joint Contract Administration 

Manual language clarifying the 

meaning of Article 19. Second, for 

help with specific handbooks or 

manuals advocates should consult 

the Index and Summary of the 

NALC Materials Reference System 

(M.R.S.). The M.R.S. is indexed by 

subject, by contract article and by 

handbook or manual provision. So 

it is easy to locate long lists of 

national-level settlements in which 

the national parties have expressly 

agreed to enforce particular handbooks 

and manuals through Article 

19 as though they were part of the 

National Agreement. The M.R.S. 

also contains numerous national 

and regional-level arbitration cases 

in the same vein. 

Although this issue usually 

arises when NALC seeks to enforce 

a handbook or manual provision, 

sometimes USPS attempts to introduce 

or enforce a document which 

has no contractual standing under 

Article 19. To argue that a particular 

management document is not 

covered by Article 19, advocates 

should use the Gamser case above. 

When questions arise concerning 

the status of a particular USPS 

headquarters publication, advocates 

should consult with the National 

Business Agent and, if necessary, 

the headquarters Contract 

Administration Unit. 

…



1+066#6'/'062&#6' 

Filing Grievances Under Article 14, USPS “No Defense” Argument 

ET 1+06 6#6'/'06 

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4+'8#0%'5 

Does a postal supervisor’s abusive 

behavior towards employees constitute 

a safety violation under Article 

14 as well as a violation of the 

Joint Statement on Violence and Behavior 

in the Workplace If the 

union believes it does and files a 

grievance directly at Step 2, can 

management render the case not 

arbitrable by arguing that (a) the 

subject matter of the case did not 

involve safety and health, so (b) the 

grievance was improperly filed at 

Step 2 

The answer seems obvious— 

that the Joint Statement is so clearly 

about safety and health that nobody 

would ever challenge a Joint Statement 

violation grieved under Article 

14 procedures. But it isn’t all 

that obvious to some postal managers. 

NALC advocates recently 

faced this management argument in 

two separate California cases. C- 

17420, Regional Arbitrator Nancy 

Hutt, October 7, 1997; C-17542, Regional 

Arbitrator Charles Rehmus, 

November 3, 1997. 

10) '#%* 

The first case arose in Long 

Beach, California, where one morning 

a letter carrier completed a 

Form 3996 requesting 30 minutes of 

auxiliary assistance after casing, 

pulling down and tying. The carrier 

brought the form to her supervisor, 

who ordered the grievant to 

return to her case, unbundle the 

mail and count it. 

During the mail count the carrier 

and supervisor argued, and another 

employee later testified that 

the supervisor was “bugging and 

bugging Grievant until she started 

crying.” After that employee left, 

the grievant reported that she told 

the supervisor that she (the supervisor) 

liked to see people suffer, 

and this exchange followed: 

Supervisor: That’s right you stupid 

bitch. I like to see you in misery. 

Grievant: You are the one who is 

stupid, you don’t know how to 

work with your employees. 

Supervisor: I’m not the one who has 

a [racial expletive deleted —Ed.] 

husband at home who kicks my ass 

all the time. 

Grievant: What kind of religious 

woman are you. You profess to be 

a Baptist, you go to hell. 

Supervisor: You are already in hell 

and so is your bitch whore mother. 

The grievant then left the work 

area, spoke with an apparently unconcerned 

station manager about 

the situation, filled out a Form 3971 

and left work. She was not disciplined. 

At the arbitration hearing a 

NALC shop steward bolstered the 

grievant’s testimony about the incident 

by reporting that the supervisor 

had previously yelled at employees 

and lost control. The arbitrator 

did not believe the supervisor’s 

contrary testimony, that she 

had spoken calmly and had not 

said anything derogatory to the 

grievant. 

4$+64#$+.+6; 557' 

Given the horrendous supervisory 

behavior in this case, it is little 

wonder that USPS pursued an arbitrability 

argument to bar a hearing 

on the merits. Management argued 

that the grievance, filed directly at 

Step 2 twelve days after the incident, 

was improperly filed under 

Article 14. Thus, management asserted, 

the grievance was untimely 

filed and not arbitrable. 

Arbitrator Hutt examined Article 

14, Section 2, which states: 

If an employee believes he/she 

is being required to work under 

unsafe conditions, such employee 

may: 

(a) notify such employee's 

supervisor who will immediately 

investigate the condition and 

take corrective action if necessary; 

(b) notify such employee's 

steward, if available, who may 

discuss the alleged unsafe condition 

with such employee's supervisor; 

(c) file a grievance at Step 

2 of the grievance procedure 

within fourteen (14) days of notifying 

such employee's supervisor 

if no corrective action is 

taken during the employee's 

tour; and/or 

(d) make a written report to 

the Union representative from 

the local Safety and Health 

Committee who may discuss 

the report with such employee's 

supervisor. 




The arbitrator turned aside an 

apparent management assertion 

that the grievant had to take the 

first two steps—(a) and (b)—before 

filing a safety grievance, noting that 

the grievant had notified her station 

manager of the situation and held a 

reasonable belief that nothing 

would be done. (The Rehmus 

award discussed below addressed 

this issue more directly.) 

Management further argued 

that Article 14 was not intended to 

be a vehicle for 

grievances alleging 

supervisory 

abuse or 

harassment. 

Rather, it asserted, 

Article 

14, Section 2 

deals with PS 

Form 1767, Report 

of Hazard, 

Unsafe Condition 

or Practice. The grievant had 

not filed the form, the management 

advocate argued, so the supervisor 

never had an opportunity to correct 

the condition during the tour. 

Arbitrator Hutt addressed and 

rejected the core of management’s 

arbitrability argument—that the 

subject of the underlying excluded 

it from Article 14 coverage, thus 

rendering the Step 2 filing improper. 

She found that although 

Article 14 does not explicitly reference 

stress, harassment or intimidation, 

... it was a reasonable interpretation 

by the Union that an unsafe 

workplace can include 

such conditions when the gravity 

of the conduct is severe. 

Moreover, the Joint Statement 

maintains harassment, intimidation, 

and bullying contribute to 

unsafe working conditions. 

Since Article 14 states the 

workplace must be maintained 

4$+64#614 '*/75 

4','%6'& /#0#)'g 

/'065 #4)7/'065 

6*#6 6*' )4+'8#0%' 

9#5 +/2412'4.; (+.'& 

in a safe and sanitary condition 

the Union asserted its perceived 

right to bypass Step 1. 

The arbitrator also employed 

the general presumption favoring 

arbitrability: 

... [R]esolution of disputes in the 

forum of arbitration is looked 

upon favorably. In order to preclude 

a party the opportunity to 

proceed through arbitration, the 

circumstances must clearly and 

convincingly support a decision. 

The contention 

of the Postal 

Service was 

not convincing 

under the specific 

facts of 

this grievance. 

Arbitrator 

Hutt’s award 

sustained the 

union’s 

grievance on 

the merits, finding violations of the 

Joint Statement and the “mutual 

respect” provision of the M-39 

Handbook (Section 115.4). She ordered 

the supervisor to cease and 

desist from all violations of those 

provisions, and to post a written 

apology to the grievant for her 

“abusive comments, bullying, and 

harassment,” to be posted on the 

NALC bulletin board for 30 days at 

the station where the grievance 

arose and at the main post office. 

She also ordered management to 

restore the leave taken by the 

grievant when she left work early 

on the date of the incident. Arbitrator 

Hutt refused the union’s request 

for disciplinary action against the 

supervisor. 

It is notable that Arbitrator 

Hutt did not find a violation of Article 

14, nor did she find specifically 

that the grievance was properly 

filed at Step 2. Rather, she simply 

refused to bar arbitration of an otherwise 

timely grievance whose 

subject matter was closely related 

to safety and health matters. 

7%#+2# 

Regional Arbitrator Charles 

Rehmus decided a combined Article 

14/Joint Statement case the following 

month in C-17452, originating 

in Yucaipa, California. Local 

union representatives filed a 

grievance at Step 2 after Charles 

London, a new officer in charge 

(OIC) in the Yucaipa Post Office, 

gave stand-up talks threatening 

employees. Four union witnesses 

later testified that London said, 

“Bad performers will be fired” or 

“gotten rid of,” and that London 

had insulted a long-time carrier in 

public. 

As in the Long Beach case, at 

arbitration the Postal Service advocate 

argued that NALC’s grievance 

was improperly filed at Step 2 because 

the union had filed the 

grievance pursuant to Article 

14.2(c) prior to notifying the supervisor 

under 14.2(a) and notifying 

the steward under 14.2(b). However, 

Arbitrator Rehmus 

forthrightly rejected this strained 

procedural objection: 

I cannot accept this argument. 

First, steps (a) through 

(d) above are all noted as steps 

that “may” be used to bring an 

unsafe condition to Management’s 

attention. Logically, either 

(a) or (b) may precede c: 

Neither is set forth as the specific 

prerequisite to (c). ... I find 

no procedural defect in this 

grievance. 

Arbitrator Rehmus squarely 

rejected management’s further argument 

that a Joint Statement vio- 




lation cannot be raised as a violation 

of Article 14. Noting Joint 

Statement language reaffirming 

“the basic right of all employees to 

a safe and humane working environment,” 

he ruled, 

The conjunction of safety concerns 

and undue levels of stress in 

Postal Workplaces in these few sentences 

quoted from the Joint Statement 

is obvious. When a Union 

steward comes to a supervisor and 

complains that an OIC has threatened, 

bullied and harassed Postal 

employees by words and actions, 

that is a complaint of a Safety and 

Health violation that can properly 

be raised as a Step 2 grievance under 

Article 14.2(c) of the National 

Agreement. 

Arbitrator Rehmus went on to 

conclude that OIC London’s actions 

“were abusive and hostile” and violated 

the Joint Statement. He further 

found that, “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.” 

Rehmus ordered the OIC to 

cease and desist, and ordered him 

to return to the Yucaipa Post Office 

for the purpose of holding a standup 

talk to apologize for his conduct 

and state that he will honor all commitments 

in the Joint Statement. 

These two decisions make clear 

that management will have a difficult 

time convincing an arbitrator 

that abusive supervisory behavior 

that violates the Joint Statement is 

not also a grievable health and 

safety matter under Article 14. 

It is also worth noting that the 

remedy ordered—a written, public 

apology—is becoming a mainstream 

arbitral remedy for abusive 

supervisory behavior that violates 

the Joint Statement. A written apology 

has some force because it 

brings public shame on the perpetrator. 

However, NALC believes 

that when arbitrators are confronted 

with this type of detestable 

supervisory behavior, the national 

Snow award on the Joint Statement 

clearly authorizes even stronger, 

more effective remedies. At the 

very least, such supervisors should 

be barred permanently from supervising 

letter carriers. 

FT ''6+0) \1 

'('05'[ 4)7/'06 

The May, 1997 Advocate addressed 

briefly the management argument 

in some Joint Statement cases that 

when a letter carrier engages in behavior 

that violates the Statement, 

the union has “no defense” to a removal 

action. In that issue NALC 

reprinted a letter from USPS headquarters 

manager Pete Bazylewicz, 

which attempted to undermine the 

August 16, 1996 national Snow 

award on the Joint Statement (C- 

15697) as follows: 

Additionally, NALC acknowledged 

during the course of the 

hearing in this case that they 

have “relinquished the right to 

challenge whether certain behavior 

is grounds for removal.” 

... This means that once a letter 

carrier’s behavior is established 

as rising to the level of a violation 

of the Joint Statement, the 

NALC does not have the right to 

challenge whether such behavior 

is grounds for removal. 

NALC Advocate, May 1997, p. 12. 

NALC has learned that some 

management advocates are following 

Bazelewicz’s twisted advice by 

arguing that NALC has “given up” 

the right to protest removal when a 

carrier’s behavior has violated the 

Joint Statement. 

Advocates should know that 

this argument is simply preposterous. 

Although NALC agreed that 

such violations can be grounds for 

removal, it did not agree that such 

behavior always justifies discharge. 

Management must prove 

in each case, as usual, that particular 

misconduct constituted just 

cause for the disciplinary action 

taken. 

By way of analogy, sometimes 

management advocates argue that 

the union cannot defend against 

discipline issued for a type of misconduct 

enumerated in Article 16, 

Section 1: 

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. 

However, no rational arbitrator 

would ever rule that such misconduct 

leads to “automatic” discipline 

or removal, or that proof of 

such misconduct justifies whatever 

discipline management decides to 

mete out. 

Rather, even when a carrier’s 

behavior is found to violate the 

Joint Statement, there are varying 

degrees of severity, fault and mitigation 

and it is the arbitrator’s job 

to match the remedy with the 

wrong. NALC advocates are free 

to employ all of the defenses at 

their disposal, as usual. At this 

time NALC headquarters is not 

aware of a single arbitration decision 

that has affirmed the extreme 

position espoused by the 

Bazylewicz letter. 

…



0192*1.&546+%.'FM416'%6+105 

USPS Must Seek Work for Carriers Without 

Driving Privileges, or Place them in Paid Leave Status 

1ational Arbitrator Carlton 

Snow has ruled that Article 29 

requires management to make temporary 

cross-craft assignments to 

provide work for carriers whose 

driving privileges have been suspended 

or revoked. C-18159, April 

8, 1998. The interpretive ruling established 

that management’s obligation 

to find work for such carriers 

in other crafts continues even 

though the NALC and APWU contracts 

were negotiated separately in 

1994. 

The case arose when management 

proposed to remove a letter 

carrier whose state driver’s license 

had been suspended for three 

years. Management contended that 

there was insufficient non-driving 

work available in the carrier craft, 

and offered instead to transfer the 

carrier to a part-time flexible position 

the clerk or mail handler craft. 

The carrier refused and management 

initiated the removal. 

At national arbitration NALC 

contended that management had 

violated Article 29 by failing to find 

the carrier temporary work in another 

craft. Article 29 provides: 

... An employee’s driving privileges 

will be automatically revoked 

or suspended concurrently 

with any revocation or 

suspension of State driver’s license 

and restored upon reinstatement. 

Every reasonable 

effort will be made to reassign 

such employee to non-driving 

duties in the employee’s craft or 

in other crafts. ... 

Management contended that it 

could have sought temporary work 

for the carrier in another craft, e.g., 

the clerk craft, if APWU and NALC 

had negotiated this provision in a 

joint contract—as they did in every 

bargaining round until 1994 negotiations, 

when the two unions negotiated 

separate agreements with 

USPS. However, management argued, 

once the unions bargained for 

separate contracts USPS could no 

longer honor its obligation to 

NALC to find work in the clerk 

craft because APWU’s own agreement 

with USPS did not permit it. 

APWU intervened in the case to 

argue essentially the same thing— 

that USPS could not obey its contract 

with NALC by working a carrier 

in the clerk 

craft in violation 

of the 

APWU agreement. 

Arbitrator 

Snow sustained 

the NALC position 

that despite 

the 

change in bargaining structure, 

USPS was still obligated to obey the 

unchanged language of Article 29. 

He also acknowledged that any 

cross-craft assignments of carriers 

in the clerk craft must be accomplished 

in a manner consistent with 

the APWU agreement. 

Recognizing that in some cases 

USPS would be caught in conflicting 

obligations under the two national 

agreements, Arbitrator Snow 

decided that USPS could resolve its 

conflict by paying the carrier rather 

than assigning him or her temporary 

duties in the other craft. 

#0#)'/'06 /756 

1$'; +65 %1064#%6 

9+6* X '8'0 +( +6 

/#&' # %10(.+%6+0) 

241/+5' 61 T 

In instances where it is impracticable 

to fulfill its contractual 

obligation under both agreements, 

the Employer is without 

contractual authority to remove 

such employee. Such individuals 

shall be placed on leave 

with pay and reinstated to 

working status as soon as work 

is available by placing the employee 

is a position which will 

not violate the collective bargaining 

agreement of either 

party. 

In essence, Arbitrator Snow 

decided that if USPS had made 

conflicting contractual promises to 

two different unions, that was the 

employer’s 

fault for planning 

poorly in 

negotiations. 

USPS cannot 

escape its contractual 

obligation 

to 

NALC by 

claiming that 

fulfilling that 

promise would violate another of 

its agreements. 

Advocates facing similar cases 

should be prepared to enforce the 

Snow award. If management refuses 

to provide a carrier whose 

license has been suspended with 

temporary work in another craft, 

claiming that to do so would violate 

its obligations under a different 

agreement, NALC should demand 

that the carrier be placed on 

paid leave until work is found or 

the license is reinstated. …



'/'&;(14'.#;'&&,756/'065 

Proof of Harm Supports Advocate’s Demand for Remedies 

6ometimes a persuasive arbitration 

advocate can marshal powerful 

facts to help wring an unusual 

remedy from a relatively ordinary 

contract violation. That’s what 

happened in a recent case decided 

by regional Arbitrator Walter Powell, 

C-17771, November 15, 1997. 

The case arose in Lansdale, 

Pennsylvania, where jointly administered 

route inspections were completed 

on October 15, but despite 

two extensions of time, 12 of the 

required new routes were not established 

by the following January 

31 st . As the arbitrator stated, the 

facts were “largely undisputed.” 

Various management difficulties, 

rather than intentional stalling, 

had led to the delay. The Postal 

Service had 

placed a temporary 

freeze on 

PTF promotions 

to full-time. 

Postings had to 

be conducted 

throughout the 

entire Philadelphia 

area. Transfers of carriers 

from other stations were delayed. 

New vehicles were unavailable and 

the old ones eventually obtained 

needed complete overhauls. New 

relay boxes had to be installed. 

Extreme winter weather added 

to these delays and also brought 

extra burdens to carriers who were 

already working overburdened 

routes. Some twenty-two snow and 

ice storms delayed the mail and 

made the routes particularly difficult 

to carry. During this period all 

of the carriers at the Lansdale Post 

Office worked maximum overtime. 

In arguing for a monetary remedy 

at arbitration, NALC needed to 

convince the arbitrator that overtime 

pay alone was insufficient to 

remedy the Postal Service’s failure 

to implement needed adjustments 

within 52 days, as required by Section 

211.3 of the M-39. And it 

needed to overcome the fact that 

management’s contract violation 

was not intentional or in bad faith, 

but rather the result of difficulties 

and omissions. 

*' #&81%#6' 

5*19'& 6*' *#4/ 

&10' $; 6*' (#+.74' 

61 #&,756 4176'5T 

The union advocate succeeded 

by providing evidence that the affected 

carriers had suffered a 

“harm”—they had been forced to 

work extraordinary hours under 

difficult conditions. NALC offered 

facts showing that the carriers had 

suffered “bad 

morale, additional 

stress 

and total discomfort” 

as a 

result. 

The union 

also provided 

arbitration 

precedent establishing the power of 

an arbitrator to grant monetary 

remedies in situations not explicitly 

contemplated by the language of 

the National Agreement. National 

Arbitrator Gamser’s decision in C- 

03200 was quoted by Arbitrator 

Powell’s decision: 

To provide for an appropriate 

remedy for breaches of the 

terms of the agreement, even 

where no specific provision 

defining the nature of such remedy 

is to be found in the agreement, 

certainly is found within 

the inherent powers of the arbi- 

trator. 

Arbitrator Powell distinguished 

the case before him, in which management’s 

violation had resulted 

from omissions and failures, from 

the facts of this Gamser case, in 

which management behavior had 

flagrantly disregarded the contract. 

However, he apparently was convinced 

by two additional cases offered 

by NALC, in which arbitrators 

had specifically approved the 

granting of additional, compensatory 

remedies to carriers affected 

by a failure to adjust routes within 

the time limit. C-14385, Regional 

Arbitrator Alan Walt, April 13, 

1995; C-10167, Regional Arbitrator 

Robert Williams, August 6, 1990. 

Arbitrator Powell sustained 

the grievance even though local 

management had not violated the 

contract intentionally. He further 

ordered monetary remedies for all 

of the carriers whose routes were 

not timely adjusted: 

♦ $10.00 per day for affected carriers 

who had signed the overtime 

desired list; and 

♦ One hour of pay at the overtime 

rate per day, for carriers 

who had not signed the OTDL. 

This award shows how an advocate 

can use precedent and effective 

argument to obtain a monetary 

remedy even where management’s 

contract violation is apparently unintentional. 

It stands for the principle 

that the National Agreement 

empowers an arbitrator to provide 

a remedy where there has been a 

wrong. 

…



&81%#6' 7/7.#6+8' 0&': 

Advocates 

Advocate’s Rights, Time Off to Prepare ...... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Nov 97 

Arbitrator’s Authority 

Challenges to Arbitrability .. ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Aug 97 

Retention of Jurisdiction .... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 97 

Discipline 

Absenteeism and the FMLA, Just Cause Meets the Law at Arbitration . ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Feb 98 

No Blanket Discipline Policies ... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Nov 97 

Driving Privileges 

Snow Upholds Article 29 Protections . ........ ....... ....... ........ ....... ....... ........ ...... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 98 

Evidence 

Excluding Expired Discipline...... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 97 

New Arguments or Evidence, Arguing For or Against Exclusion ... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Feb 98 

Parking Past Practice is Prologue, Arbitrator Reinstates Paid Parking Program..... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Feb 98 

Postal Inspectors - Not Above the Law ...... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 98 

The Grievant as Management’s Witness..... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ...... May 97 

Handbooks and Manuals 

Handbooks and Manuals, When are They Part of the Contract... ....... ........ ...... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 98 

Hearing Procedure 

Introducing Documents...... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ...... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Aug 97 

Sequestration and Technical Assistants ..... ....... ....... ........ ....... ....... ........ ....... ...... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Nov 97 

Tips on Technical Assistants ..... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Nov 97 

Transcripts in Regional Hearings ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 97 

Joint Statement on Violence 

Arbitrators Enforce Joint Statement ... ........ ....... ....... ........ ....... ....... ........ ....... ...... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 97 

Joint Statement Case Update .... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Aug 97 

Case Update - Filing Grievances Under Article 14, USPS “No Defense” Argument ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 98 

Leave 

Administrative Leave for “Acts of God”........ ....... ....... ........ ....... ....... ........ ...... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Feb 98 

Remedies 

Delayed Adjustments - Proof of Harm ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 98 

Dollars for TE Violations, Failure to Give Union Information . ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Feb 98 

Making Management Pay, Arguing for Monetary Remedies . ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Nov 97 

Monetary Award for Improper TE Hiring ...... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 97 

Monetary Remedies Without Proof of Loss . ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Aug 97 

USPS Asks Money Damages .... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... May 97 

Six Memorandums 

No Exit from X-Route, Money for Ignored Joint Route Adjustments ...... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... Nov 97 

Note on Citations 

Please note that the C-number arbitration 

cases and M-number Materials 

Reference System materials cited 

in this publication are available to 

interested advocates. All materials are 

available from the office of the 

National Business Agent. All but the 

newest arbitration cases are available 

on the NALC Arbitration CD-ROMs, 

and all but the newest M.R.S. materials 

are available on the M.R.S. 

CD-ROM. 

Copyright 1998 

National Association of Letter Carriers, AFL-CIO 

100 Indiana Avenue, NW - Washington, DC 20001

Interviewing Postal Inspectors, Obtaining Their ... - NALC Branch 908

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