C -:~l / 6'~ (' qREGULAR ARBITRATION PANEL

D

In the Matter of Arbitration DD

between ) GRIEVANT : J . Heredia

NATIONAL ASSOCIATION OF )LETTER CARRIERS D POST OFFICE : Los Angeles, CA

and )

UNITED STATES POSTAL SERVICE ) CASE NO . W7N- 5D-D 18820D

BEFORE : Professor Carlton J . Snow

APPEARANCES: Mr. Joseph Green

Mr . Harold Powdrill

PLACE OF HEARING : Los Angeles, California

DATE OF HEARING : August 3, 1990

AWARD :

Having carefully considered all evidence submitted

by the parties concerning this matter, the arbitrator con-

cludes that the Employer suspended and removed the grievant

without just cause . Accordingly, he shall be reinstated

and made whole, except for a deduction of three days wages

for delaying the mail and a deduction for any interim earn-

ings . The arbitrator shall retain jurisdiction in this

matter for ninety days from the date of the report in order

to resolve any problems resulting from the remedy in the

award .

Date :

It is so ordered and awarded .

IN THE MATTER OF ARBITRATION

BETWEEN

NATIONAL ASSOCIATION OFLETTER CARRIERS

AND

UNITED STATES POSTAL SERVICE )(Heredia Grievance) )

(Case No . W7N-5D-D 18820) )

ANALYSIS AND AWARD

Carlton J . SnowArbitrator

I . INTRODUCTION

This matter came for hearing pursuant to a collective

bargaining agreement between the parties effective from July

21, 1987 to November 20, 1990 . A hearing occurred on August

3, 1990 in a conference room of the postal facility located

at 7001 South Central, Los Angeles, California . Mr . Joseph

Green, Labor Relations Representative , represented the United

States Postal Service . Mr . Harold Powdrill , Executive. Vice-

president of Angel City Branch 24 , represented the National

Association of Letter Carriers .

The hearing proceeded in an orderly manner . There

was a full opportunity for the parties to submit evidence,

to examine and cross -examine witnesses, and to argue the

matter . All witnesses testified under oath as administered

by the arbitrator . The arbitrator tape-recorded the proceed-

ing as an extension of his personal notes . The advocates

fully and fairly represented their respective parties .

The parties agreed that the matter properly had been

submitted to arbitration and that there were no issues of

substantive or procedural arbitrability to be resolved . The

parties authorized the arbitrator to retain jurisdiction in

the matter for ninety days following issuance of a report .

They submitted the matter on the basis of evidence presented

at the hearing and oral closing arguments .

II . STATEMENT OF THE ISSUE

The parties stipulated that the issue before the arbi-

trator is as follows :

Was the emergency suspension and Notice of Removal

for mistreatment of mail issued to the grievant for

just cause ? If not, what is the appropriate remedy?

2

III . RELEVANT CONTRACTUAL PROVISION

ARTICLE 16 - DISCIPLINE PROCEDURE

Section 1 . Principles

In the administration of this Article, a basicprinciple shall be that discipline should becorrective in nature, rather than punitive .No employee may be disciplined or dischargedexcept for just cause such as, but not limitedto, insubordination , pilferage , intoxication(drugs or alcohol ), incompetence , failure toperform work as requested , violation of the termsof this Agreement , or failure to observe safetyrules and regulations . Any such discipline ordischarge shall be subject to the grievance-arbitration procedure provided for in this Agree-ment, which could result in reinstatement andrestitution , including back pay .

IV . STATEMENT OF FACTS

In this case, the grievant has challenged the Employer's

decision to place him on emergency suspension and to remove

him for mistreatment of mail . The grievant has worked as a

full-time letter carrier for the Employer since June of 1985 .

Although there is a vigorous dispute about the meaning of the

facts in the case, many of them are undisputed .

On July 11, 1989, the Guild National Bank reported to

the United States Postal Inspection Service the nonreceipt of

a first class letter containing a pre-approved credit card

application for one Matthew Carberry . It had been mailed on

June 19 , 1989 . The letter had been addressed to Mr . Carberry

at 5697 West Adams Boulevard in Los Angeles , California at

Zip Code 90016 . An investigation revealed that the letter

3

had been incorrectly addressed to a "No Such Number" address .

The Bank also informed the Postal Inspection Service that

someone had returned the pre - approved credit card application

on July 5, 1989 and that it had been completed with the fol-

lowing information

Name : Matthew Carberry

Address : 5696 West Adams , Los Angeles , California

Home Telephone No . : (213 ) 933-7401

State Driver ' s License No . : N4727671

Gross Monthly Income : $3600

90016

Because the address on the completed credit card appli-

cation was a nonexistent address, postal inspectors attempted

to verify the additional information contained in the appli-

cation . An investigation revealed that the telephone number

belonged to a local business which did not employ anyone who

resided on West Adams Boulevard . The driver ' s license number

belonged to a female resident of Rancho , California . On the

basis of this information , postal inspectors hypothesized

that the regular letter carrier on Route No . 16046, the route

to which the letter would have been directed before anyone

discovered it was addressed to a "No Such Number" address,

opened the letter and falsified the application . Since the

letter had been mailed from San Francisco on June 19, 1989,

postal inspectors reasoned that i t had taken a standard

delivery time of two days for the letter to reach Los Angeles .

Hence, they began their investigation by focusing on the

letter carrier assigned to Route No . 16046 on or about June 21,

4

1989 .

The grievant carried Route No . 16046 on June 21 - 23, 1989 .

Postal Inspectors Newlen and Robertson conducted a surveil-

lance of the grievant . On August 8, 1989, they caused a test

letter to be prepared which resembled a letter containing a

credit card . The test letter bore an address to Matthew

Carberry at the same " No Such Number" address as appeared on

the original letter containing the pre-approved application .

It appeared in mail to be cased by the grievant . The postal

inspectors were trying to determine how the grievant might

have handled the original letter containing the pre - approved

application by watching his treatment of the test letter .

According to Inspector Newlen , the grievant examined the

test letter and placed it on his case ledge while continuing

to work . The inspector testified that , after the grievant

had finished casing his mail and properly had deposited the

missent mail and endorsed returnable mail in the mis-throw

case, the grievant placed the test letter in the front separa-

tion of his satchel . Inspectors Newlen and Robertson , joined

by two additional inspectors , continued the surveillance of

the grievant from August 8, 1989 until August 12 , 1989 . Dur-

ing this time , Manager Cora Jones checked the grievant's

satchel at the beginning of each work day at the request of

the inspectors . She stated that the test letter remained in

the grievant ' s satchel from August 8 to August 12, 1989 .

On August 10, 1989 , Inspector Newlen prepared a test

postcard addressed to the same "No Such Number " address as

5

the test letter , and he placed it in mail to be processed by

the grievant . The grievant endorsed the postcard with his

route number and "NSN," signifying a "No Such Number " address .

Then he placed it in the mis -throw case .

At the end of the grievant ' s shift of work on August 12,

1989, he placed his satchel in the trunk of his car . This

was the first day, during the surveillance period, in which

the grievant had attempted to take home his satchel at the

end of his shift . At this time , Inspector Newlen approached

the grievant and asked him to accompany inspectors into an

office to be interviewed . During the interview , the grievant

stated that he had been the regular carrier on Route No .

16406 for approximately eighteen months . Inspector Newlen

testified that the grievant was asked if he knew the correct

procedure for handling a letter addressed to a "No Such Number"

address and that the grievant said it should be endorsed with

the route number and "NSN" and, then , placed in the mis-throw

case . Inspector Newlen stated that the grievant was asked if

he had any equipment in his car and that he said he did not .

The grievant , then, consented to have his car searched ..

When the postal inspectors removed the grievant ' s satchel

from his car , the grievant still maintained that he had not

had any equipment in his car . When the inspectors removed

the test letter , the grievant stated that the letter had been

placed in his satchel because he had wanted to make a trial

delivery of the letter and that he simply had forgotten about

its being there . According to the grievant , he told the

6

inspectors he had placed the letter in one of the compart-

ments of his satchel in order to attempt the trial delivery

and that he previously had attempted trial deliveries of such

"NSN" letters . During the shift, he had suffered an on-the-job

injury and had reported to the hospital immediately after the

shift ; and he simply forgot about the letter until the postal

inspector showed it to him on August 12, 1989 . The grievant

testified without equivocation that he never opened or com-

pleted any credit card application and that, on inspecting

the falsified application, he knew it was not his handwriting .

The Employer placed the grievant on emergency suspension

and removed him on August 21, 1989 for mistreatment of mail .

When the parties were unable to resolve their differences,

the matter proceeded to arbitration .

V . POSITION OF THE PARTIES

A . The Employer

The Employer contends that it had just cause for the

grievant ' s emergency suspension and removal . It is the posi-

tion of the Employer that the grievant was guilty of conduct

tantamount to stealing mail and that such theft constituted

just cause for his removal .

According to the Employer, the grievant forged the credit

application and, therefore , must have stolen the letter con-

taining the original application . It is the belief of the

7

Employer that the grievant was the most likely suspect because

the letter also had been addressed to a "No Such Number"

address on the grievant's route and would have arrived at

the postal facility on one of the grievant's work days .

The Employer also relied on observations of postal in-

spectors assigned to the case in reaching its decision. One

of those conclusions was that the grievant's driver's license

number had "Alpha-numeric similarities " to the license number

listed on the forged credit card application . Moreover, the

Employer concluded that the grievant's handwriting was "pic-

torially similar" to the handwriting contained in the appli-

cation . The Employer maintains that the conclusion of an

expert in handwriting analysis whom management had consulted

supported the Employer's conclusion that the grievant had

forged the application and that such evidence made reasonable

the Employer's conclusion that the grievant had stolen the

application .

The Employer argued that the grievant's conduct with

regard to the test letter showed an intent to steal the test

letter . It is the contention of management that such conduct

by the grievant was tantamount to theft and strongly supported

its decision to remove the grievant . The Employer maintains

that the grievant deliberately held the test letter in his

mail satchel for five days because he intended to steal it .

According to the Employer , there is no other rational explana-

tion for the grievant's having kept the letter, especially

since he had attempted to take his satchel home on August 12,

8

1989 . Accordingly , the Employer believes that the grievant

was removed for just cause .

B . The Union

The Union contends that the grievant ' s emergency suspen-

sion and removal had no basis in just cause because the

grievant was not guilty of theft . It is the position of the

Union that no reliable evidence has been submitted to the

arbitrator which links the grievant to the theft of the credit

card application . The Union contends that many other letter

carriers , as well as unknown individuals , had access to the

application form .

The Union also maintains that the grievant ' s explanation

for his handling of the test letter was entirely credible .

Accordingly , the Union argued that , at most , the grievant was

only guilty of inadvertently delaying the mail . It is the

position of the Union that the grievant ' s attempt to make a

trial delivery of the test letter was completely reasonable

and was a procedure corroborated by Manager Cora Jones's

statement that letter carriers may attempt trial deliveries

of "No Such Number" letters . Accordingly , the Union argues

that the grievant ' s handling of the test letter was reason-

able and that no inference of an intent to steal the test

letter is warranted or justified in this case . Because the

grievant allegedly was not guilty of theft on which the

9

Employer based its removal, the Union argues that the griev-

ant should be reinstated with all back wages .

The Union also contends that the Employer violated the

grievant ' s industrial due process rights and express contrac-

tual rights under Article 15 of the parties ' agreement and

that this specific violation came about because management

refused to disclose all relevant facts about the case to the

Union . The Union argued that it had not received the Inves-

tigative Memorandum prepared by the postal inspectors . Nor

had it received conclusions reached by a handwriting expert .

On that basis alone, the Union maintains that management's

decision to remove the grievant was defective and should be

overturned .

10

VI . ANALYSIS

A . The Nature of Circumstantial Evidence

In this case, the Employer removed the grievant on the

basis of his theft of mail and forgery of a pre-approved

credit application , as well as his alleged intent to steal

the test letter . Despite the words used in the statement of

charges against the grievant , evidence submitted to the

arbitrator at the hearing made clear that these were the foun-

dation of the removal decision . Theft of mail , of course, is

a dischargeable offense , but the burden of proof in such

cases is on the Employer . In this case , the Employer has

sought to meet its burden of proof through using circumstan-

tial evidence .

Evidence can be either direct or circumstantial . Direct

evidence exists when a trier of fact must conclude only that

the evidence is credible to establish the truth of asserted

facts . An example of direct evidence would be testimony from

a witness that he saw one person shoot another . A trier of

fact would only have to conclude that the testimony of the

witness was credible in order to reach a conclusion that the

fact asserted , the shooting , was true .

Circumstantial evidence is different . It requires not

only a conclusion about the credibility of testimony from a

witness but also the use of inferences . Circumstantial evi-

dence requires an arbitrator to infer that asserted facts are

true in a way that is unnecessary when direct evidence is the

basis of a decision . Circumstantial evidence that a witness

11

saw a shooting would be testimony from the individual that he

or she was near a place where the person had been shot, at a

time when the person had been shot, and that the witness saw

a particular person running away from the scene . In order

for an arbitrator to reach a conclusion that the accused shot

the person, it would be necessary to infer not only that

testimony from the witness is credible but also that the pre-

sence and flight of the person seen leaving the scene estab-

lished that the individual shot the victim .

The value of circumstantial evidence depends on the

strength of the inference which can be drawn from established

facts . If circumstantial evidence is ambiguous and permits

several different inferences to be drawn , then the evidence

is weak and generally will not establish the truth of the

proposition for which it has been offered . The force of cir-

cumstantial evidence depends on its capability of removing

other reasonable explanations except for the proposition it

has been offered to support . Circumstantial evidence may be

more reliable than direct evidence , but it is necessary for

other reasonable explanations to be eliminated ; and it should

not leave legitimate questions unresolved .

12

B . Theft of a Credit Card Application

A series of key contentions have been set forth by the

Employer . These propositions have caused management to con-

clude that the grievant stole and forged the pre-approved

credit card application . The assertions are :

(1) That the grievant was the most likely person to

have committed the theft ;

(2) That the grievant's handwriting was "pictorially

similar" to the handwriting in the credit card

application ;

(3) That the grievant's driver's license number had

"alpha-numeric similarities" to the license number

listed on the credit card application ; and

(4) An expert in handwriting analysis concluded that

the grievant completed the application .

The Employer also rested its selection of the grievant

as its prime suspect on a series of assumptions . Unfor-

tunately, the assumptions contained a good deal of speculation .

The inspectors speculated that the arrival date of the pre-approved

credit card application would have been on or about June 21,

1989 . This was a crucial assumption which linked the grievant

to what ultimately became the forged application . The postal

inspectors used a standard delivery time of two days for a

letter traveling from San Francisco to Los Angeles and estab-

lished that the letter, arrived on or about June 21, 1989 . The

accuracy of the standard delivery time, however, was questioned

by the inspectors themselves .

13

Inspector Newlen testified that he reviewed delivery

standards and "added a few days ." This process, he testified,

narrowed his investigation to the grievant because the griev-

ant had been assigned to Route No . 16046 on June 21-23,

1989 . The standard delivery time is only an approximation .

The arrival date of the letter containing the credit card

application could have ranged from one to five days after the

bank mailed it . Additionally, even if the letter had arrived

at the postal facility and had been directed to the grievant's

route on a date when the grievant was carrying the route,

Inspector Newlen conceded that the grievant would not have

been the only person who would have had access to the letter .

Inspector Newlen testified that he found "alpha-numeric

similarities" between the grievant's driver's license number

and the license number listed on the forged credit card

application . The similarities look like this :

N4752756 ( Grievant ' s number)

N4727671 ( forged number) .

Although both license numbers contain the letter 1N't as

well as the numbers "47" and "27," there is no identifiable

pattern of any significance in the numbers which would enable

one reasonably to infer that the grievant copied his own

license number, after making some minor change . This is not

a situation in which someone simply reversed the number . Nor

did the arbitrator receive any data at all about drivers'

license nmbers generally in California and the number of

licenses that begin with "N ."

14

Inspector Newlen also offered his opinion that the

grievant ' s handwriting was "pictorially similar" to hand-

writing contained in the credit card application . The inspec-

tor, however , conceded that he had not been trained as an

expert in handwriting analysis and that he , in effect, offered

the opinion of an ordinary citizen . His opinion with respect

to the similarity in handwriting cannot be given significant

evidentiary weight in view of his lack of technical training

in the area .

The most significant evidence offered by the Employer to

establish that the grievant had stolen the credit card appli-

cation came from an analysis by a handwriting expert who

asserted that the grievant had completed the application form . .

(See, Employer ' s Exhibit No . 2) . Such evidence had the poten-

tial to link the grievant directly to the forged application

and, arguably , to the theft of the application . Rules of

fairness and reasonableness , however, have made it necessary

for the arbitrator to disregard this evidence for two impor-

tant reasons . First , the expert did not testify at the arbi-

tration hearing , and there was no basis for judging the accuracy

of the analysis or questioning the expert about her

credentials . The Employer offered the evidence as hearsay,

and the Union vigorously objected . There is no way of

determining whether or not the "expert " was qualified to

render an opinion in this case and what data she used as the

basis for her conclusion . Her "expert opinion" could have

been dispositive in this case . At the same time, the expert

15

analysis came from a member of the Crime Laboratory Division

in the Office of the Regional Chief Inspector for the United

States Postal Service, and fairness mandates that the griev-

ant have an opportunity to cross-examine a witness offering

such crucial information .

In addition to the fact that the evidence needed to be

tested by the process of cross-examination, it has not received

any weight because the Employer did not have the "expert's"

conclusions to management at the time it made the decision to

remove the grievant . The Employer made its decision no later

than August 21, 1989 . The opinion from the handwriting

"expert" was not available until September 19, 1989 . (See,

Joint Exhibit No . 2(E) and Employer's Exhibit No . 2) . Arbi-

trators long have followed a rule of reasonableness which

requires that a removal decision be tested within the context

of evidence available to management at the time it made its

decision . As a general rule, subsequently discovered evidence

that was available at the time of the removal decision cannot

be used as the basis for justifying an earlier decision .

(See, e .g ., wells Aluminum Corp . , 86 LA 983 (1986) ; Loma

Corp . , 1975 ARB 8068 (1975) ; and Zinsoco Electrical Products ,

64 LA 107 (1975)) . As one arbitrator stated :

The only relevant evidence of facts which the personmaking the discharge had was in his possession at the timehe acted . A discharge cannot be based on conjecture,surmise, suspicion, or anything but hard, material,and known facts . (See, Borden's Farm Products, Inc . ,3 LA 607, 608 (1945)) .

Circumstantial evidence offered to support the proposi-

tion that the grievant was responsible for stealing the credit

16

card application failed to be persuasive . The process used

by management to select the grievant as the prime suspect was

rooted in speculation . The conclusion of the postal inspec-

tors that there were "alpha-numeric similarities" between the

grievant's driver's license number and the one listed in the

forged application did not warrant an inference that the

grievant had been the one who committed the forgery . In

addition, the observation of the postal inspectors that the

grievant's writing was "pictorially similar" simply was not

persuasive .

C . The Test Letter

The Employer removed the grievant on the basis of two

alleged thefts . The second incident of alleged theft occurred

during an investigation of the grievant as a suspect in the

theft and forgery of the pre-approved credit card application .

This fact is significant because it may have influenced the

Employer's appraisal of the grievant's actions with respect

to the test letter . The Employer was already suspicious of

the grievant , and actions of the grievant which may have been

entirely innocent could have appeared to be suspicious . Mere

suspicion , however , does not support a removal decision,

especially one based on a charge of theft . If the Employer

had been able to substantiate its claim that the grievant had

stolen the pre-approved credit card application, this would

have become a legitimate fact to consider when weighing

17

circumstantial evidence of the alleged theft of the test

letter, since the application and the test letter were linked .

Yet, since the Employer failed to substantiate its contention

that the grievant was guilty of stealing the credit card

application, such a suspicion failed to have evidentiary

value .

By removing the grievant for theft, the Employer assumed

the burden of proving that the grievant intended to approp-

riate the Employer's property for his use . The Employer

needed to establish that it was his plan intentionally to

deprive the Employer of its property . As one arbitrator has

observed,

In requiring proof of 'intent to steal,' arbitratorsare not simply applying criminal law requirements fortheft but common , everyday understanding . Thus,Webster ' s Third New International Dictionary defines'theft ' as follows : ' the act of stealing ; specific :the felonious taking and removing of personal propertywith intent to deprive the rightful owner of it .( See, Grant Hospital , 88 LA 591 ( 1986)) .

While not dispositive , the criminal law definition of"theft"

is a useful source of guidance in an arbitration proceeding

involving the same issue . One respected treatise on this

subject has stated :

Common-law larceny . . . requires the taking andcarrying away of the property of another, and thedefendant's mental state as to this act must beestablished , but in addition it must be shown thattthere was an 'intent ' to steal the property . (See,LaFave & Scott , Criminal Law , §§ 3 .2 and 6 .8 (1986)) .

The "intent " element of theft also has been emphasized by

judicial decision . As one court has stated :.

18

The taking must be with the specific intent to steal ;i .e ., to appropriate property of another and permanentlydeprive him of its possession . Unless this is proved,there is no larceny . ( See, People v . Turner , 267 Cal . 2d440, 443 , 73 Cal . Reptr . 263, 265 (1968 ) ; see also,People v. Kunkin , 507 P .2d 1392 ( 1979)) .

These sources support a conclusion that it is imprudent to

remove an employe for theft without giving some attention

to the issue of intent .

Intent to steal, however , can be proven by circumstantial

evidence . ( See, Sandstrom v . Montana , 442 U .S . 510, 522

(1979)) . In other words, an arbitrator may infer from an

individual ' s knowledge or awareness of the consequences of

his or her actions that the individual intended those results .

Likewise , conditions or events surrounding a person's actions

may reasonably point to the fact that the defendant intended

to commit the offense . In this particular case, the Employer

argued that the fact that the grievant retained possession of

the test letter for five days and the fact that the grievant

knew how properly to process an "NSN" letter but failed to

do so, all help establish that, when the grievant tried to

take his satchel home, he intended to steal the letter. The

Employer took the position at the arbitration hearing that it

had just cause to remove the grievant because he not only

appropriated property in the care of the postal service but

also he knowingly and deliberately did so .

As stated earlier in the report , the force of circum-

stantial evidence is found in its ability to eliminate other

reasonable explanations for a course of action other than the

truth of the proposition for which the evidence has been

19

offered . Other acceptable reasons for a person's actions

undermine the persuasive power of the circumstantial evidence .

If there are other acceptable reasons for the grievant's

action for which the Employer removed him , the Employer has

failed to carry its burden of proof .

The event on which the Employer has relied is that the

grievant did not properly process the test letter , a letter

addressed to a "No Such Number" address . It is clear from

the grievant ' s testimony and the test postcard that he knew

how to process an "NSN" letter . The grievant , however, testi-

fied that he did not endorse the letter "NSN " because it was

his desire to attempt a trial delivery . He testified without

rebuttal that he had undertaken trial deliveries on other

occasions and that he had done so because his route had a

high population of transients . He stated that he thought thee

numbers on the letter might have been jumbled or that someonee

might inquire aboutthe letter , which he stated without rebuttal

had occurred in the past . Manager Cora Jones's testimony

that many carriers under her supervision had attempted trial

deliveries in the past with "NSN" letters supported the

grievant ' s testimony that not immediately processing the let-

ter as an "NSN " letter was a reasonable course of conduct .

The grievant admitted that he placed the test letter in

a zippered compartment of his satchel , a compartment separate

from the rest of the mail . He testified that he did so

because he was going to attempt a trial delivery . The griev-

ant also stated that , during his shift that day, he suffered

20

an on-the -job injury and reported to the hospital immediately

after his shift ended, causing him to forget about the letter

in his satchel . The arbitrator received no evidence to rebut

his statement . Inspector Newlen testified that the grievant

checked his satchel each day after it had been emptied of

mail, and he offered his belief that the grievant had been

checking for the test letter .

The postal inspector , however, did not testify that he

saw the grievant actually remove the test letter from the

satchel . He was not in a position to observe what the grievant

saw when he checked his satchel each day . The grievant denied

remembering that the letter was there at all . He stated that,

because the test letter was in the smallest of three compart-

ments in the satchel, he did not observe the letter at all

during the five days that he had forgotten about it . The

Employer tried to establish that, because the grievant had

accountable mail during this period of time, he would have

had to see the letter . The grievant responded that he kept

the accountables in the larger of the two small compartments

in his satchel and that he had no reason to check the smaller

compartment for such mail . The parties displayed the griev-

ant°s satchel at the arbitration hearing , and the three com-

partments were clearly visible , with one large compartment

for regular mail and two smaller compartments . The middle

compartment could be zipped shut .

The grievant gave a completely plausible explanation for

his attempt to remove the satchel on August 12, 1989 . He

testified that he had wanted to take the satchel home because

21

an inexperienced letter carrier was to deliver his route on

the grievant ' s days off , and the grievant did not want his

satchel to be misplaced . He testified without rebuttal that

his satchel had been misplaced in the past and that it was

difficult to find it . Manager Cora Jones testified that, in

fact, there had been problems at the station with misplaced

satchels and that employes would have to spend time searching

for them . The Employer contended , however, that the griev-

ant's attempt to remove the satchel was in violation of Section

131 .11 in the M-41 Handbook and that the grievant's conduct

presented further proof of an attempt to steal the test letter .

Even though such conduct might have constituted

a technical violation , Ms . Jones conceded that she did not

know whether or not employes routinely took their satchels

home with them . The explanation submitted by the grievant

was reasonable . Additionally , the grievant had a radio and

a watch actually affixed to his satchel , and it was under-

standable why a letter carrier would not want to have his or

her satchel misplaced . Although the postal inspectors argued

that the grievant lied to them about having equipment in his

car, it must be recalled that he voluntarily allowed them to

search the car ; and he reasonably might have believed his

satchel was not the sort of equipment to which the postal

inspectors were referring . Had the postal inspectors asked

the grievant if his satchel was in the car and received a

negative response , then management would have had

for concluding that the grievant was lying .

22

a basis

Circumstantial evidence presented in this case failed

to support a conclusion that the grievant intended to steal

the test letter . Evidence about the instance is just as

consistent with his innocence as it is with his guilt . The

grievant ' s explanation for his conduct is reasonable and

plausible , and the grievant never had been disciplined for

removing a satchel or theft . Accordingly , it is reasonable

to conclude that the Employer failed to carry its burden of

proving that the grievant intended to steal the test letter .

It, however , is clear that the grievant was guilty of

delaying the mail . Since the letter was received by the

inspectors intact, the grievant would only have been guilty

of a delay of mail , if there had been no determination by the

inspectors that the grievant had stolen the mail . In other

words, the grievant ' s backpay should be reduced to reflect a

disciplinary suspension for delaying the mail . It is recog-

nized that the Union raised serious due process issues with

respect to the obligation of the parties to share all rele-

vant facts and documents . In view of the conclusion reached

at this point in the analysis , however , it is unnecessary to

address those issues .

23

AWARD

Having carefully considered all evidence submitted

by the parties concerning this matter, the arbitrator con-

cludes that the Employer suspended and removed the grievant

without just cause . Accordingly, he shall be reinstated

and made whole, except for a deduction of three days wages

for delaying the mail and a deduction for any interim earn-

ings . The arbitrator shall retain jurisdiction in this

matter for ninety days from the date of the report in order

to resolve any problems resulting from the remedy in the

award . It is so ordered and awarded .

Respectf ,ly submitted,

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