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_LEO KOTIN 4/20/82 ModifiedRemoval - Attempted Removal of Postal_ Property (clip boards) _

d//0 '? (wec-rc- b)

In the Matter of Arbitration ) ~~

between) OPINION

UNITED STATES POSTAL SERVICE )Rici:aond, Cali fornia ) AND

)and AWARD

4NLICr'~2t POSTAL WORKS IRFION, )

Issue : Termination (f Steven Pruitt ARBITR&TION

W8C-5C-DF21104 )

This arbitration arises under an Agreement (Jt .Ex.l)

between the UNITED STATES POSTAL SERVICE, hereinafter referred

to as the Postal Service , and the A}ERICtaN POSTAL WORKERS UNION,

AFL-CIO, hereinafter referred to as the Union.

A hearing was held in Richmond, California, on

February 9, 1982 .

Appearing for the Postal Service : Denise Alter

Appearing for the Union: Roy Kirton

The parties were afforded full opportunity for the

presentation of their cases . Each pasty subauuitted a post-

hearing brief. -

TF-E ISSUE

The issue was stipulated to as follows :FROM THE OFFICE OF 1 .

JOHN P. RICHARDSDIRECTOR

INDUSTRIAL RELATIONS 2 .APWU AFL - CIO

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Was the termination o€ Steve Pruitt inviolation of the labor Agreement .

If the answer to the above is "no",what remedy, if any, shall apply?

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RELEVANT PROVISIONS OF THE IAECR ACRES E1T

ARTICLE 3

hntt nGc •u.NT RIGzTS

The Employer shall have the exclusive right,subject to the provisions of this Agreement andconsistent with applicable laws and regulations :

A. To direct employees of the F_Tployer in theperformance of official duties ;

E . To hire, pronote, transfer, assign, end retainemployees in positions within the PostalService and to suspend , denote , discharge, ortake other disciplinary action against suchemployees ;

C . To maintain the efficiency of the operationsentrusted to it ;

D. To determine the methods , means , and personnelby which such operations are to be conducted ;

E. To prescribe a uniform dress to be worn by .letter carriers and other designatedemployees ; and

F. To make whatever actions may be necessary tocarry out its mission in emergency situations,i .e ., an unforseen circuTstance or a combina-tion of circumstances which calls forimmediate action in a situation eihich is notexpected to be of a recurring nature .

ARTICLE 16

DISCIPLINE PROCURE22

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Section 1 . Principles

In the administration of this article , a basicprinciple shall be that discipline should becorrective in nature, rather than punitive . Noemployee may be disciplined or dischar4ed exceptfor just cause such as, but not limited to,insuordination , pilferage , intoxication ( drugsor alcohol), incompetence failure to performwork as requested violation of the terms of thisAgreement , or failure to observe safety rul_s and

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regulations . Any such discipline or discharge shallbe subject to the grievance -arbitration procedureprovided for in this Agreement, which could resultin reinstatement and restitution, including back pay .

Section 5 . Suspensions of More Than 14 Days orDischarge

In the case of suspensions of more than fourteen(14) days, or of discharge, any employee shall,unless otherssise provided herein , be entitled to anadvance written notice of the charges againsthim/her and shall remain either on the job or onthe clock at the option of the Employer for a periodof thirty ( 30) days . Thereafter , the employee shall .remain on the rolls (non-pay status ) until disposi-tion of the case has been had either by settlementwith the Union or through exhaustion of the grievance-arbitration procedure . A preference eligible whochooses to appeal a suspension of more than fourteen(14) days or his discharge to the Merit SystemsProtection Board (MSPB) rather than through thegrievance -arbitration procedure shall regain on therolls (non-pay status) until disposition of the casehas been had either by settlement or throughexhaustion of his MSPB appeal, When there is reason-able cause to believe an employee is guilty of acrime for which a sentence of imprisonment can beimposed , the Employer is not required to give theemployee the full thirty (30) days advance writtennotice in a discharge action , but shall give suchlesser ntnber o€ days advance written notice asunder the circumstances is reasonable and can bejustified . The employee is inmediately removed froma pay status at the end of the notice period .

RELEVANT PROVISIONS OF POSTAL SERVICE"EMPLOYEE HANDBOOK"

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CODE OF ETHICAL CONDUCT

The Code of Ethical Conduct is a guide for allemployees on the conduct expected and requiredwhile on official duty. As a postal employee youare expected to maintain the highest moralprinciples, uphold the laws of the United States,and the regulations and policies of the PostalService. It is your responsibility to act kithintegrity worthy of the public interest and trust .

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Activities that might be interpreted as a conflictof interest such as the acceptance of gifts,gratuities, and favors, or giving endorsement arenot acceptable bras of conduct . Additional anddetailed information concerning these ethicalstandards is included in The Code of EthicalConduct. You will be given a copy of thisdocument as it is required reading for all employees .Read it carefully and consult with your supervisorshould any questions occur .

• CF:v OLD

The grievant wes enployed as a mail handler from

October 21, 1975 to July 5, 1976 . At that time he was promoted

to the classification of Distribution Clerk .

On April 24, 1981 the grievant requested a "property

pass" (a Postal Service form reflecting permission granted to

the employee to leave the Postal Service premises with Postal

Service property.) Al Poyadue, the grievant' s Superintendent,

informed the grievant that he could not issue the requested passfor five clipboards .

Subsequently, the grievant, on leaving the premises of

the post office, was etcpp_d by Security Officer Warren Terrel .

Terrel requested a property pass for a number of paper pads in

the grievant's possession . 1 e grievant did not have one .

Terrel comyunicated the incident to Supervision . Following some

consideration by various supervisors, the decision was made toteninate the grievant . His termination became effective June

22, 1981 .

POSITION OF HE POSTAL SERVICE

According to the Postal Service, security police

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officer, Warren C . Terrel, observed the grievant at the

departure gate at approxirately 2 :35 a .m. on the morning of

April 24, 1981 . As the grievant approached the lobby exit and

was standing outside of the guard's office , the guard observed

some lined tablets that the grievant was holding in front of

him at waist height and under a brown lunch bad. Terrel in-

quired as to whether the grievant had a pass . The grievant

replied "No" . Thereupon, Terrel informed the grievant that he

would need a pass in order to exit the building with the PostalService property . Terrel took the tablets and filled out an

Incident Report which reads as follows :

INCIDENT : A1TDfl'TED REMOVAL OF POSTAL PROPERTY

FACTS : At 0235 hours, this date P.O was observingemployees as they departed the facility aftercompletion of Tour III . Mr . Pruitt approachedthe exit point and RD noticed a large bundle in hishand . RO questioned Pruitt as to what it was hehad then removed the bundle and found it to be,five lined tablets . Mr Dillahunty was standing by:-and observed this tranaction. (sic)

ACTION TAKEN : RD informed Pruitt he was notauthorized to remove the tablets . RO then con-fiscated the tablets and placed them in SecurityControl office . Supv Rochon was then informed ofaction taken by R0 . Fruitt was allowed to departthe facility.

PS Form 713 prepared and attached toproperty.

4signed) Warren C. TerrellkP 2tY C . TrRRELL 302Security Police Officer

(P .O.Ex .l)

The report was received by Carrie Owens, a Postal Service

Supervisor . On receipt of the statement from Officer Terrel,

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Owens conferred kith Supervisor Al Poyadue . Poyadue informed

Oens that the grievant had, in fact, requested permission to

remove some clip boards . Permission was denied . After the

discussion between Poyadue and Owens the decision was made to

terminate Pruitt .

P o athie corroborated Cens ' testimony. He asserted that

the termination was consistent with post office rules and

regulations governing conduct on postal property. The relevant

excerpts from the Rules and Regulations (Postal Service Ex .3)

are as follows :

Pursuant to authority of law, the Postal Servicehas adopted the following rules and regulations togovern the conduct of persons on postal property :

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C. GENa`SL RRESflICTICNS

1 . Preservation of Property . Imporperlydisposing of rubbish, spitting, creatingany hazard to persons or things, throwing .articles of any kind from a building,climbing upon the roof or any part of abuilding, or willfully destroying, damagingor removing any property or any partthereof, is prohibited .

3. Inspection. Packages, briefcases, andother containers brought into, while on,,or being removed from the property aresubject to inspection . A full search ofa person may accompany an arrest .

As to the specific activity on the night in question,

Poyadue testified that he was asked by Pruitt for permission to

remove a number of clip boards from the premises . Poyadue

replied that there was a regulation rigidly enforced, prohibit-

ing the removal of Postal Service property for personal use .

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The grievant asserted that he needed the use of the clip boards

in connection with a "little league" program in which he was

participating as a sponsor . The grievant offered to leave a

deposit to insure the return of the clip boards . At that point

Poyadue asked him to leave the clip boards so that he, Poyadue,

could talk to higher management as to the possibility o£ granting

the grievant's request .

Ultimately, the grievant returned the clip boards to

Poyadue . At that time he was not in visible possession of the

paper tablets .

Pruitt' s account of the circumstances under which he

received the paper tablets is patently devoid of credibility .

Pruitt's claim that the tablets were, in a sense, forced on

him is absurd on its face .

In aggregate, the evidence clearly supports the

following findings which are urged upon the Arbitrator :

1, The grievant had full knowledge of thepost office rules regarding the removalof its property from its premises .

2 . The conversation bet-peen the grievant andPoyadue clearly reflected the post officepolicy and constituted an obvious denialof the grievant's request to remove theproperty .

3 . The grievant's claim that another employeein charge of stores had stated or impliedthat the paper tablets were of no valueand consequently could be appropriated withimpunity is clearly in contradiction to thetestimony of all witnesses, including thegrievant, as to the post office rulesregarding appropriation of its property .

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4 . The grievant ' s testimony was evasive inmany instances and in others reflectedinternal contradiction. It was onlyunder vigorous cross examination that headmitted that his intent was to leavethe premises with the paper and "probablytake it home ."

5 . The Union ' s assertion that the grievantmade no attempt at concealment of the paperin no hay mitigates his culpability inappropriating post office property.

6 . The post office regulations as contained inthe 'Handbook" Regulations' Ex . 5) and the "Rulesand Regulations' governing conduct onpostal property (P.O .Ex .3) were well knownto the grievant . He cannot and, in fact,did not plead ignorance of their content .

7 . Arbitrators have universally recognized thatpilferage , regardless of the value of thepilfered items, constitutes just cause fordischarge . This is reflected in the twoArbitration Awards of Mervin J . Feldman.

In the Opinion and Award in,Case #5 DET .843b/AC-C-

12593-B, Arbitrator Feldran wrote as follows :

The grievar.*- is guilty of pilferage, a pettytheft, yet a theft going to the very heart of hisemployment. May a postal worker steal a little?Is there a difference in the amount stolen, as toextent of penalty? The contract states thatpilferage is one of the elements for which dis-cipline and discharge may lie . It is difficultfor one to understand that an employee may lose ajob of significance for a mere twenty-six cents .Yet, doesn't a postal emoloyee have to have a highmoral behavior pattern? Isn't he entrusted withthe mail and valuables of another ? Is it fair tothose people using the United States mails to havean employee on duty who merely pilfers rather thancommits grand larceny? I ask that hypotheticalquestion with tongue in cheek . Quite frankly,every job with the United States Postal Service isa sensitive lob. That type of employment requiresan individual whose personality just does notcater to any type of taking of the property ofanother. Furthermore, allowing an employee to be

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perpetuated in his employment who is guilty ofpilferage is creating an open license to otherssimilarly employed, to engage in acts of dis-honesty without fear of their job terminating .This arbitrator does not desire to initiate thatthought .

For all of the reasons heretofore cited, it is urged

that the termination of the grievant be sustained .

POSITION OF THE UNION

The Union asse=ts that the penalty in the instant

situation reflects gross inequality o£ treatment . Postal

Service witness Poyadue was unclear in his testimony as it

relates to his assessment of the grievant's guilt and to

practices involving comparable situations . It is clear beyond

any doubt that the grievant had no intent to misappropriate

post office property . This is reflected in his prior request

for permission to remove the clip boards, his offer to leave a •

deposit, and his failure to make any effort to remove the clip

boards, The grievant concedes that he did have the paper in

his possession but that the paper was more or less forced on

him by Leroy Jennings, a Level 6 Stock and Supply Clerk .

Jensnirgs testified that the normal procedure for

obtaining stock from the Supply Room was through a Clerk Runner

and a written order . He further stated that in emergencies, he

issued stock without the written request which he later filled

out himself . He remembered the specific instance giving rise to

thin disciplinary action . His testimony clearly establishes

that the grievant requested only the five clip boards . It was

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he, Jennings, who suggested that he take five writing pads

from a broken bundle . At no time did the grievant request the

writing pads .

The record in aggregate and the testimony of Postal

Service witnesses fails to establish any intent on the part of

the grievan_t to acquire Postal Service property . His initial

request to take five clip boards was denied and thereafter the

grievant made no attempt to remove them from the post office

premises . The acquisition of the paper pads occurred in all

innocence when the grievant relied on assurances of a fellow

enpleyee that such an act would not be violative of any

regulations .

Despite the protestations of Postal Service witnesses,

Poyadue admitted that in one instance, the mental condition of

an employee was deemed to be a mitigating factor in the imposition

of a penalty for appropriating a comic book which was not his atm .

In imposing the maximum penalty, the Postal Service is

charged with failing to consider the total situation which, on

its face, reflects the innocence of the grievant or at the least,

mitigating factors . The penalty o£ discharge is far too

grievous when projected against the alleged offense . The grievant

should be . reinstated with no loss of seniority and with full

back pay.

DISCUSSION

The Arbitrator is mindful of, and completely agrees

with the Postal Service policy of terminating, employees guilty

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of appropriating Postal Service property . The instant situation

is characterized by a number o£ elements which tend to cast

doubt on the pro_riety of the termination penalty . Intent cannot

be completely ignored when the attendant circumstances fail to

establish any element of self enrichment . The Arbitrator deems

it significant that the request for the clip boards was to

further a public service as reflected in the program of "Little

League". The offer to leave a cash deposit further attests to

the integrity of the grievant . The testimony of Jennings would

seem to indicate some degree of provocation or inducement to the :

grievart to take the illegal action for which he was terminated .

Of significance is, what, in the opinion of the

arbitrator, constitutes an crndue delay in the imposition of the

penalty. The events giving rise to the termination occurred on

April 24, 1981 . The termination was effectuated June 27, 1981 .

The passage of approximately two months reflects an inequitable

delay in the imposition of a penalty . The Arbitrator finds

nothing in the entire record of such complexity as to require

the passage of this undue length of tine . In summation, while

the Arbitrator finds that some culpability attaches to the

grievant, the mitigating elements present warrants a modification

of the extreme

circumstances,

penalty of termination . Under all of these

the Arbitrator makes the following

AVARD

1 . The grievant shall be reinstatedforthwith to the position he heldat the time of his termination .

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The grievant shall be reimbursed inan anount equal to what he would haveearned at his regular rate of payduring a period of twenty (20)tree ks .

The period for which the grievant isnot paid shall be deemed a dis-ciplinary layoff for violation ofPostal Service rules .

Leo Kotin, Arbitrator

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