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

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NALC Arbitration Advocate Page 8 Volume 2, Issue 2 May 1998 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- (Continued on page 9)
NALC Arbitration Advocate Page 9 Volume 2, Issue 2 May 1998 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. …
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Interviewing Postal Inspectors, Obtaining Their ... - NALC Branch 908

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