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The Arbitrator Rules
In addressing the merits of the case,
the arbitrator came immediately to the core issue, that there
is no standard speed established for driving between mail boxes
to make deliveries. The arbitrator stated, "Since there
is no standard, the Service can't reasonably show one was violated,
unless unbiased, objective evidence clearly shows obvious malingering
(by a camcorder, for example)." The supervisor, whom the
arbitrator characterized as "hard driving," was clearly
not an impartial observer. Further, the arbitrator stated, "Every
carrier is not required to drive as fast as the fastest driver."
The arbitrator rejected the union's argument that because management
had imposed the 14-day suspension without knowing the results
of arbitration of previous discipline, the suspension was improper.
As the arbitrator saw it, the purpose of discipline at whatever
level is to put employees on notice of what management expects
and will act against with more severe discipline if repeated.
Therefore, in the arbitrator's opinion, management need not wait
for each discipline to be resolved before issuing another discipline
for the same behavior.
The bigger issue for the arbitrator, however, was whether the
grievant clearly understood why he was being disciplined in the
first place. Effective progressive discipline requires that the
person being disciplined be aware of the exact nature of the rule,
regulation, policy or order that is being violated. The supervisor
was unable to cite such a rule, but rather relied on a subjective
judgment of the grievant's performance as "unsatisfactory."
For this reason, the arbitrator sustained the grievance and
instructed management to make the grievant whole for any money
and benefits lost as a result of the 14-day suspension.
Note To Stewards
In the final analysis, this case
demonstrates a basic principle of approaching grievances involving
discipline. The behavior cited by management in issuing the discipline
must be a violation of a rule, regulation, policy or order. A
charge of "poor performance" cannot stand by itself;
rather, management must be able to prove that the grievant was
guilty of deliberate misconduct. The standards set in arbitration
for such proof include the testimony of reliable witnesses or
a preponderance of evidence.
In this case, management had only one witness-the supervisor
who issued the discipline. This person could not cite a specific
rule or procedure that the grievant had violated. As part of the
arbitration hearing, the parties recreated the circumstances leading
to the issuing of the discipline. In that reenactment, the arbitrator
was unable to find any evidence that the grievant had behaved
as the supervisor claimed. And in any event, a charge of "driving
too slowly" is not a basis for discipline unless management
has objective proof of deliberate malingering, as the arbitrator
pointed out.
Postal management constantly pressures letter carriers to speed
up, whether in the office or on the street. This case illustrates
that management cannot simply claim a carrier is not performing
at an appropriate speed. There is no standard for appropriate
street time. Rather, each carrier has the right to set his or
her own speed based on their individual abilities and capacities.
Knowing this right, stewards should be alert to protect carriers
from arbitrary management demands to speed up.
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