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REGULAR ARBITRATIONSOUTHERN PANELIn the Matter of Arbitration Under ) GRIEVANT: Hilton M . Howellthe Labor Agreement Between )

POST OFFICE: Poplar Head Annex,Dothan, AL

UNITED STATES POSTAL SERVICE ) MANAGEMENT CASE NOS :The Employer or Service ) H94N-4H-D 97060906 and-and- ) H94N-4H-D 97068746

NATIONAL ASSOCIATION OF LETTER ) UNION CASE NOS . 1: 16309701 ;CARRIERS, AFL-CIO ) and 16309703; GTS 012306The Union )

ND NO: 2073

BEFORE: NICHOLAS DUDA JR., ARBITRATOR

APPEARANCES :

For the U .S. Postal Service : Ms . Debi E. EdmundsLabor Relations Specialist6701 Winton Blount Blvd .Montgomery, AL 36119-9401

For the NALC : Mr. James MayfieldLocal Business Agent, Branch 530, NALC2101 Magnolia Ave. South, Suite 504Birmingham, AL 35205

Place of Hearing: Dothan, AlabamaDate of Hearing: September 24, 1997Datre Record Closed: October 13, 1997

AWARD

The Emergency Placement was without just cause . The Service is directed to makeGrievant whole for the period of his Emergency Placement .

There was just cause to discipline Grievant, but not to remove him . The Service isdirected to rescind the Removal, convert the disciplinary action to an extended suspension ofthree months, reinstate Grievant and make him whole for the wages and benefits lost as resultof the improper removal. The Arbitrator retains jurisdiction until January 31, 1998 solely forpurposes of deciding any dispute as to the meaning of or compliance with this Award .

Ni olas Duda Tr ., Arbitrator

November 13, 1997KOV 2 41997

1S REG"ONMEt1 to P,

H94N-4H-D 97060906 and ND 2073 PAGE 2

SUBJECT: Emergency Placement, Notice of Proposed Removal and Letter of Decision .

NATURE OF THE CASE

An "altercation" involving words and some physical contact occurred between Grievant

and Carrier Daryl Jones on January 6, 1997 . Postal Inspectors interviewed the participants and

witnesses on that day . Both participants continued to work as scheduled . A day or two later

Grievant apologized to Mr . Jones ; the latter said he was sorry about the incident . Nine days

later a Labor Relations Specialist for the Alabama District, located in Montgomery, Alabama,

was assigned to go to the Poplar Head Annex of the Dothan, Alabama , Post Office to interview

persons having knowledge of the January 6 altercation and counsel Dothan Supervision on

action concerning the altercation . She interviewed Grievant and several witnesses , but Daryl

Jones was not present and immediately available. The Labor Relations Specialist then

counseled with Poplar Head Annex Manager Flippo , who later that evening telephoned

Grievant's home to notify him he was placed on Emergency Placement effective January 16,

1997. By letter dated January 24, 1997 Grievant was notified of the Employer 's proposal to

remove him based on "altercation with fellow employee" and "disrupting Postal operations ."

The Union challenged both the Emergency Placement and the Letter of Proposed Removal in

the first of the two cases identified above . Dothan Postmaster Barre Payne answered the

grievance in Step 2 on February 13, 1997 . The next day he issued the Letter of Decision,

notifying Grievant he would be removed . The removal stated that the charges were fully

supported by the evidence and that " the Postal Service has a zero tolerance for workplace

violence and threats ." The Letter of Decision was made the subject of the second grievance,

which is also covered by this decision under an agreement made by the Parties on May 9, 1997.

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This Opinion and Award decides the issues in the second case as well as the first .

GRIEVANCE CASE FILE

1/17/97 Letter from Manager Flippo to Grievant

. . .You were placed in an off-duty (without pay) status effective January 16,1997 . . .

The reason for the action is:

On January 6, 1997, you were interviewed by Postal Inspector R. A. McMurrayconcerning an altercation between you and Daryl Jones . It has been determinedthat retaining you on duty may result in you injuring your self or others .

1/24/97 Notice of Proposed Removal to Grievant from Mr. Flippo

The reason for this action is :

Charge 1: Altercation with Fellow Employee .

On January 6, 1997, you initiated an altercation with Daryl Jay Jones . . . Youentered Mr. Jones's work area and as the words became strong in tone you gavea two-handed push to the chest . . .. Your behavior is intolerable and you arecharged accordingly .

Charge 2: Disrupting Postal Operations

. . . several of your coworkers stopped working and looked to see what theyelling was about. Your actions have created a work stoppage and can not betolerated. You are charged accordingly .

. . .You were clearly the aggressor in this altercation. Your actions were not oneof defense. You initiated the altercation, you entered the closed in work area ofMr. Jones stating that you intended to inflict harm and pushed him backwards .Your actions can not be tolerated .

A review of your disciplinary record reveals the following :

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On January 16, 1997, you were placed in Emergency Placement in Off-DutyStatus .

You have previously been made aware of the importance of non-confrontationalbehavior in the work place. You have been placed on notice of the acceptableway in which to conduct yourself at work .

1/30/97 Step 2 Appeal by Branch 1630 President James Metcalf

Violation: National Art . 3, 15, 16 . Other grounds : Past Practice shown to otheremployees (12/19/96 incident)

. .. Mr. Howell was casing flats when Mr . Jones began banging on the back of hiscase and hollaring. Mr. Howell stepped around his case to see what theproblem was. They exchanged words and the Supervisor came along and theyboth resumed casing their mail .

Union Contentions: This suspension and removal were not for just cause . . . .Management has made a mountain out of an ant hill over this incident . On12/19/96 a male rural carrier threatened to kill a female rural carrier and allmanagement did was look the other way. Why was this incident not acted on aswas the one of 1/6/97? Management says Mr . Howell that, 'it has beendetermined that retaining you on duty may result in you injuring your self orothers.' Wake up, he worked eight days after incident and Postal Inspector didnot indicate to put Mr. Howell off duty .

Corrective Action Requested: That Mr. Howell receive full back pay for anyand all lost time because of the two actions taken against Mr . Howell. Thatletters be expunged from his discipline record and OFF. Also that if thisgrievance goes beyond Step 2 that interest be included along with the back pay .

2/13/97 Step 2 Answer by Dothan Postmaster Barre Payne

. .. Mr. Howell was the aggressor in this situation . He clearly left his immediatework area and came into the confined work area of another carrier, madephysical contact with that carrier, and verbally told him that he would kick his'ass .'

. . .For this reason the grievance is denied .

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2/14/97 Letter of Decision from Postmaster Barre to Grievant

. . .the charges as stated service in the notice of January 24, 1997, are fullysupported by the evidence and warrant your removal .

Your representative stated that the incident as described in the charges was of aminor nature and did not warrant your removal. I disagree. The Postal Servicehas a zero tolerance for workplace violence and threats . Your behavior was aclear act of physical aggression .

. . .Your misconduct has had an irreversible negative [effect] on the reputation ofthe Postal Service as [well] as all the employees who work for the Postal Service .Your work record and length of were considered . The penalty of removal isconsistent with the penalty imposed upon other employees for the same orsimilar offenses . . . . Rehabilitation is not appropriate in this situation . . .. Thereare no adequate or effective alternative sanctions that would deter such conductin the future.

2/22/97 Letter of Corrections and Additions by Branch 1603 President Metcalf

2 . . . .Mr. Howell would have never came around the comer of his case if Mr .Jones had not been beating & banging on the back of his case. Mr. Howellwas clearly not the aggressor in this situation . [Jones should have] steppedaround the case and asked him to stop or have went to the Supervisor andhave him asked Mike not to case flats so hard . . .

4 . . . .If management believed that Mr. Howell was dangerous he should havebeen placed in Off-Duty Status on 1/6/97 . . . . . It is totally unconscionable thatyou let Mr. Howell work eight days if you believed him to be dangerous tohimself or others. By the way the only incident that did occur was that onJanuary 8, 1997 Mr. Howell and Mr. Jones did have a conversation ofapology and both expressed that [there] were no hard feelings .

6. Your . . . response is also very deficient concerning the two rural carriersincident of 12/19/97 . . . . How can you even suggest that, 'no actual threatsubstainted [sic] in our investigation .' The reason being is that it was notinvestigated properly and it was not 'treated seriously' even though youindicated that it was . . . . Now how can you make such a bold statementabout it being investigated when Ms . Campbell never even spoke to a Postal

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Inspector .

7. . . .Ms. Edmunds did . . . in fact interrogate Mr. Howell without giving him hisMiranda Rights and without advising him that he could have a UnionRepresentative present if he wished to do so . She then made or convinced ormaybe even persuaded Mr. Flippo and you to, get rid of a near 24 year PostalService Veteran plus a Military Veteran who gave part of his life to protectthis country served one year in Vietnam and is now a Disabled AmericanVeteran .

8 . . . .Mr. Flippo made it clear to Mr. Kelly the Shop Steward at Step 1 that thisdecision was coming from the top down to him and he could not and did nothave the authority to settle this case . . . . if you think Mr. Flippo is committedto protecting the other employees at Poplar Head Annex you better thinkagain! He worked on 1/6/97 the date of the incident and allowed and evensanctioned Mr. Howell being on the work room floor for 8 days after theincident happened .

9 . . . .The witness statements do not indicate as to which carrier either Mr . Jonesor Mr. Howell had their hands up first . As I previously stated in my numberfive correction if you had a near 300 pound man coming at you that youwould try to push or slap his hands away from your face .

13. Management violated its own M-39 handbook 115 .1, in that disciplineshould be corrective in nature, rather than punitive . No employee may bedisciplined or discharged except for just cause .

14. -the Postal Inspectors . . . did in fact violate Mr . Howells rights also onJanuary 6, 1997 . They did not read him his Miranda rights and did notadvise him that he could have a Shop Steward . . . present when they weredoing their interrogating of him.

2/28/97 Appeal to Step 3 by President Metcalf

Violation: National Art . 3, 15, 16, 19. Other grounds : EEM-39 115, Past practiceshown to other employee in similar circumstance 12/19/96 .

Reasons for Appeal: Management took very punitive action against Mr . Howellinstead of progressive discipline using corrective action . Mr. Howell would nothave said anything or moved from his casing duties if the other employeeinvolved had not been beating and banging on the back of his flat case.Management took Emergency Placement after the grievant had worked eight

H94N-4H-D 97060906 and ND2073 PAGE 7

days since the incident. Proposed removal for this is totally unacceptable,especially after a rural carrier threatens to kill another and his only discipline is aLetter of Warning.

Corrective Action Requested : That Mr. Howell be made whole. That he receivehis full back pay for any and all lost time because of these two actions that havebeen taken against Mr. Howell. That the letters be expunged from his disciplinerecord and OPF. Also that if this grievance goes beyond Step 2 that interest beincluded along with the back pay, or whatever settlement an arbitrator will seeas fit and just.

4/12/97 Step 3 Decision by labor Relations Specialist Joseph Leahy

. . .it is my decision to deny the grievance.

The measures were taken because, consistent with provisions of Article 16 .7,management believed that if the grievant had been allowed to continue working,harm could have come to a fellow employee and consistent with Article 16 .5, theactions of the grievant were serious enough to warrant termination .

On January 6, 1997, the grievant left his work area and accosted a fellow carrierwhile both were in a pay status . No acceptable reason existed for the actions ofthe grievant.

. . .just cause was established for the grievant's removal and non-pay status .

Unsatisfied with Mr. Leahy's decision, National Business Agent Ben Johnson appealed

to arbitration. At the arbitration hearing each Party presented argument and evidence, both

testimonial and documentary. The joint submissions consisted of 47 pages of documents .

Management and Union each submitted other documents . At the end of the oral hearing

Grievant expressed his appreciation and satisfaction for the representation by the Union .

After the hearing both Parties submitted post-hearing briefs . Each Party also submitted

seven arbitration decisions . In addition the Postal Service submitted quotes from various

documents .

H94N-4H-D 97060906 and ND 2073 PAGE 8

POSITIONS OF THE PARTIES AT ARBITRATION

POSTAL SERVICE POSITION

On January 6, 1997, the grievant initiated an altercation with his fellow employee,Daryl Jay Jones. This altercation consisted of a threat, 'I'll kick your fat ass and aphysical battery by shoving Mr. Jones. . . .Manager Flippo placed the grievant onEmergency Placement in Non-Duty Status January 16 On January 24, 1997,Manager Flippo issued the grievant a Notice of Proposed Removal for Charge 1 -Altercation with Fellow Employee and Charge 2 - Disrupting Postal Operations . . . .

Did just cause exist for the issuance of the Emergency Placement in Non-DutyStatus, the Notice of Proposed Removal and the Letter of Decision to Mr . Hilton M .Howell?

Argument 1 - The grievant's misconduct falls within the scope of Threats andViolence in the Workplace .

. . .The grievant . . .is throwing flats into the distribution case and could not hear howloud he was throwing the flats. The flats were so loud that the carrier on theopposite side of the grievant's case could hear it and was annoyed . . .. Mr. Jones . . .hitthe back of his own case . . .the grievant was charging at him looking angry andthreatening him by saying, 'I'm gonna kick your fat ass .' Mr. Jones put up his armsto defend himself when the grievant reached out and shoved him against the lapboard of his case. . ..Mr. Goff, a fellow carrier . . . crossed the workroom floor to breakup the altercation . . . .

Argument 2 - The Grievant is Not Credible .

The grievant was unsuccessful at trying to portray his fear of Mr. Jones. Yes Mr .Jones is a large man. But the grievant is a Marine, who has obviously taken goodcare of himself. The grievant attempted to explain that he went into Mr. Jones' caseto merely ask what was going on. Once he initiated this conversation, Mr. Jonesbecame angry and charged out of the case towards him. The grievant then stated hefroze in fear and could think of nothing else but to confront and push Mr. Jones. Thegrievant failed miserably in convincing anyone in the hearing room that he, a trainedMarine Infantryman who fought in Vietnam, was frozen in fear of Mr . Jones . . . .

Argument 3 - Management's Response to Issues Raised by the Union .

B. The grievant s conduct does not warrant Removal.The union would have us believe that this was simply a routine misunderstandingbetween co-workers . . .. just two guys expressing themselves . This is typical union

H94N-4H-D 97060906 and ND 2073 PACE 9

attempt to brainwash and save the grievant from his own irrational behavior. Whatwould the union have Manager Flippo and Postmaster Payne do? Allow this typeof employee to continue to escalate in his threatening and violent outburst untilsomeone really gets hurt or killed . . . .

The grievant is a violent and irrational bully and should not be allowed to return tohis job .

Everyone in the nation knows the experiences that the Postal Service has enduredover the past years when it comes to violent employees . It has been a constant focusof the media. Managers and Postmasters as well as Union Officials have becomeless tolerable of what appears to be minor altercations . This lack of tolerance haslead to many postal employees being discharged from the service. It has alsoprovided more protection to the remaining employees than ever before .

D. The police were not called.. . . It was not necessary to call the Police nor did Inspector McMurray find that therewas evidence of an 'actionable threat/ assault for federal prosecutive action based onthe known policy of the U .S. Attorney .' The union would use this as a basis forbarring any administrative action on the part of the Dothan Post Office . However,Inspector McMurray also states, 'However, this does not preclude your initiation ofadministrative action if considered appropriate .' These statements from InspectorMcMurray are sufficient to refute the union's argument

E. The grievant is the victim of Disparate Treatment.

Mr. Payne and Mr. Flippo explained that the Campbell/Martin incident was in noway comparable to the grievant's misconduct . . .the investigation revealed that therewas no implied or explicit threat to Ms . Campbell.

Argument 4 - Jones is as Guilty as Howell .

. . .The grievant was clearly the aggressor . . .. Any reasonable person would haveresponded not violently to the knocking. Any reasonable person would have juststopped thumping the flats . Any reasonable person would have apologized andthat would have been the end of it But the grievant was not a reasonable person.

H94N-4H-D 97060906 and ND 2073 PAGE 10

Argument 5 - Arbitration Authority to Uphold the Action Taken.

Arbitrators have historically recognized the penalty of removal for ImproperConduct and Engaging in Conduct Perceived to be Threatening . -the misconductwas beyond the scope of tolerance . . . .the grievant has proven to have a history ofsuch violent outburst. . . .

CONCLUSION

There is a history of the Postal Service terminating employees for the conductdisplayed by the grievant . . . .the grievant because irrational . . . .he charged into Mr.Jones case and threatened to 'Kick his fat ass.' When Mr. Jones put up his arms todefend himself, the grievant shoved him backwards into his lap board. The entiretime the grievant was charging and shoving, Mr. Jones is shouting 'Get out of mycase.' . . . The shouting was such a disruption that several employees turned to seewhat was going on and Mr. Goff was so concerned about what he saw that he cameto break it up . . . .

This is clearly a violation of the Threats and Violence in the Workplace policy of theAlabama District as well as that of the National Joint Policy on Violence in theWorkplace. The grievant did threaten Mr. Jones and the grievant did physicallyassault Mr. Jones. The penalty for such actions is removal .

Mr. Arbitrator the Postal Service has shown that there was just Cause for theremoval of the grievant and we respectfully request you deny the grievance .

NALC POSITION

. . .Mr. Flippo . . .testified-He didn't ask either employee to leave, both worked thefull shift . . . . He stated they watched the situation, but felt that Mike Howell was noimmediate threat . . . . After talking with Ms . Edmunds, he decided that Mr. Howellshould be put on emergency placement. No one told him to do it, he just felt it waswhat needed to be done . . . . .

Management has made no case for the Emergency Suspension of the grievant .Article 16.7 of the National Agreement states:

Section 7. Emergency ProcedureAn employee may be immediately placed on an off-duty status (withoutpay) . . .where the employee may be injurious to self or others . . . .

H94N-4H-D 97060906 and ND 2073 PACE 11

Mr. Flippo's own testimony was that Mr . Howell was not an immediate threat, andsince he worked for almost two weeks and Mr . Flippo testified that things werepretty much as usual in Poplar Head annex, one has to assume that Mr . Howell wasno threat to during this period. Indeed, it was during Ms . Edmund's visit (10 daysafter the incident) that Mr . Flippo decided he needed to put the grievant onemergency placement. Not even the Postal Inspectors, after interviewing thegrievant on January 6, 1997, felt the need to advise management to place thegrievant off the clock

Removal: Management's own testimony and documents prove the Unions case .The fact that Mr. Jones was equally guilty of inappropriate behavior and the fact thata rural carrier threatened to kill another rural carrier are acts of disparate treatment .Mr. Jones testimony that he didn't ask the supervisor to ask Mr. Howell to refrainfrom throwing his flats so hard because'Dino didn't have the guts to say anythingto Mike Howell' can only be self help - If management won't stop him, I will . Hisstatement (Union 2) 'I got right back in his face and told him to get out of my case'and he had forgotten that when Mr . Howell came into his case area he had his handup. . .. Mr. Howell was charged with disrupting the workroom floor. Yet everystatement says Jones was also involved . . . .

Management tried to build its case on the 1991 incident for Reactionary Behaviorand increase in Aggressive Behavior. This stack of documents, the cover letter in bigbold type, was nothing more than an attempt to sway the arbitrator from the realfacts. The grievant never even got a Letter of Warning for the 1991 incident, and ifhe had it would have expired after 2 years and could not be cited in any case . Thisattempt by management violates the very principle of the National Agreement anddenies the grievant Due Process . Wasn't banging on the case by Mr . Jones, insteadof informing the supervisor, Reactionary Behavior?

Mr. Moon's Memorandum on Threats and Violence in the Workplace states threatsof any kind will not be tolerated. Any employee who threatens a co-worker orsupervisor will be disciplined up to and including removal . Apparently if you're arural carrier or a supervisor who makes a threat, this doesn't apply . . . .. Mr. Metcalf sCorrections and Additions . . . give a lot of the Unions reasons why the removal of Mr .Howell is not for just cause .

SUMMATION

The evidence presented, and testimony given, clearly shows that on the morning ofJanuary 6, 1997, that Daryl Jones beat loudly on Mr . Howells case to get hisattention, rather than ask the supervisor to stop his loud flat throwing . There wereno problems between the two until this point and the evidence dearly shows thatboth employees acted unprofessionally when they let their tempers flare .

The evidence clearly shows that management decided to ignore Ms . Campbell'sletter of a threat against her, at least to a point where they took the word of Mr .Martin that she butted in and nothing was meant by what was said . . . .

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The evidence clearly shows that enforcement of Mr . Moon's Memorandum is onlybeing done to Mr . Howell. The.evidence clearly shows that no action was takenagainst Mr. Jones, Mr. Martin, or supervisor Elliot This is DISPARATETREATMENT!

. . .management used documents from 1991, six (6) years ago to justify its position .These documents (which were not even discipline) were not even given to the Unionuntil March 1997. Citing of discipline over 2 years old violates a grievant's dueprocess. How could these documents not do the same?

REMEDY

No one has lost in this case except Mr . Howell. He will have been out of work for 8months or more before the decision is rendered. While Mr. Howell's actions onJanuary 6, 1997, cannot be totally ignored, he should not be expected to bear the totalcost of this incident The Union requests the grievant be made whole .

ISSUES

1. Did the Postal Service have just cause to place Grievant on an off-duty status (without

pay) on January 15,1997?

2. Did the Postal Service have just cause to issue Grievant the Notice of Proposed Removal

and Letter of Decision?

3. If so, what remedy is appropriate?

RELEVANT EXCERPTS FROM THE SUBMISSIONS

LABOR AGREEMENT

ARTICLE 14 - "Safety and Health"

Section 1 . ResponsibilitiesIt is the responsibility of management to provide safe working conditions in allpresent and future installations and to develop a safe working force . . . .

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ARTICLE 16 - "Discipline Procedure

Section 1. Principles. . .a basic principle shall be that discipline should be corrective in nature, ratherthan punitive. No employee may be disciplined or discharged except for justcase such as . . .failure to observe safety rules and regulations . . . . .

Section 7. Emergency ProcedureAn employee may be immediately placed on an off-day status (withoutpay) . . .where the employee may be injurious to self or others . . . .

Section 8. Review of DisciplineIn no case may a supervisor impose suspension or discharge upon an employeeunless the proposed disciplinary action by the supervisor has first beenreviewed and concurred in by the installation head or designee .

Section 10. Employee Discipline RecordsThe records of a disciplinary action against an employee shall not be consideredin any subsequent disciplinary action if there has been no disciplinary actioninitiated against the employee for a period of two years .

12/6/91 Letter from Postmaster Payne to Postal Inspector McMurray

Subject: . . . Mike Howell

I have reviewed the detailed statements provided in the above case, the witnessstatements and in addition have interviewed the two main parties involved .From these steps, I feel that Mr . Howell is not harmful and has corrected theattitude which caused this response . I feel no further action is necessary in thiscase .

12,/6/91 Statement by Dothan , Alabama Postmaster Payne to all his employees

In our daily work environment, we often experience decisions, situations, andeven people that will create a negative thought in our mind . To provide a safeand productive work place, threats and insinuations of threats and/or violencecannot be tolerated. Any of these type incidents will not be taken lightly . Allcases will be reported to the Postal Inspection Service and appropriatedisciplinary action including removal will be taken .

Each employee deserves a safe place to work without interruption .

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219/96 Memorandum by Alabama District Manager Walter Moon to his Postmastersand other Managers about "Threats and Violence in the Workplace"

. . .I would like to reiterate the District's position on these issues .

Maintaining a safe, healthy, friction-free work environment is an ongoingresponsibility of every employee . . . .I wish to communicate with you on anindividual basis concerning the critical subject of employee threats, altercations,and assaults . . . .

Threats of any kind will not be tolerated. Any employee who threatens acoworker or supervisor will be disciplined up to and including removal .

Employees who threaten others either physically or verbally can expect theseverest of disciplinary actions up to and including removal, as well as thepossibility of criminal charges. Any employee who feels threatened shouldimmediately report the incident to their supervisor or the Postal InspectionService.

There is no place in the Postal Service for violence or threats .

1/10/97 Letter from Postal Inspector McMurray to Postmaster Barre Payne

Herewith is an Assault and Threat Specialty Report relative to an incident whichoccurred on 01/06/1997 involving your employee(s) . Due to the nature of thecircumstances, further investigative attention by the Inspection Service is notwarranted at this time . . ..this does not preclude your initiation ofadministrative action if considered appropriate . . . .

Brief description of incident and any injuries : . . . .

Postal Inspector R. A. McMurray and R. N. Obert. . . conducted interviews withHowell and Jones .

Jones said he and Howell have adjoining letter cases and Howell was casingflats, throwing them extremely hard causing them to bang on the back of thecase. Jones said this banging got on his nerves so he took his fist and banged theback of his case a couple of times . Immediately Howell came around into hiscase saying, 'I'll kick your ass' and shoved him . Jones said he got back inHowell's face telling him three or four times to get out of his case area . Jones

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said Supervisor Dino Hall came up and told everyone to calm down and Howellwent back to his case.

Howell states he was casing mail and listening to his radio through headphoneswhen he heard Jones throw several flats . Then Jones started banging on hiscase. Howell said he went around to Jones case and asked, 'What's going on?'Howell said he pushed Jones backward with both hands and Jones then pushedhim back making his headphones come apart. Howell said Donnie Goff (Jewett)and Dino Hall came between them and they resumed their work .

Witness Jewett Goff stated he heard heated words being exchanged betweenHowell and Jones. Goff said Howell entered Jones' work area and as the wordsbecame strong in tone he saw Howell give a two-handed push to Jones in thechest area. Goff said at this point he reached the two and he took hold ofHowell's arm and told him to go back to his case . Howell complied and nothingelse was said .

Dino Hall, 204-B Supervisor, stated he heard a verbal altercation and discoveredHowell and Jones exchanging verbal remarks while standing in Jones' workarea. Hall said he asked both to calm down and they returned to their duties .

Witness, John Lanton provided a statement saying he heard flats being thrownhard against a case. Then Jones asked Howell to quit and Howell said he wasn'tdoing it on purpose. Lanton said Jones hollered about three times for Howell toget out of his case area. Then someone came over and told them to cool it .

This is not an actionable threat/assault for Federal prosecutive action based onthe known policy of the U .S. Attorney . No further attention is warranted bythe Postal Inspection Service .

ANALYSIS

FINDINGS OF FACT

Barre Payne has been Dothan, Alabama, Postmaster for over seven years . Many of

Dothari s Letter Carriers are based in the Poplar Head Annex . Manager of the Annex is Larry

Flippo, who has been stationed there for seven years .

Grievant Mike Howell has been a long-time Carrier (27 years) in Dothan . Before his service

with the Post Office Grievant had served in the Marine Corps for three years, including one year

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with the Infantry in Vietnam . He was discharged with 30% disability . Despite his disability, Mr .

Howell has an imposing physique, quite muscular overall, sitting on a frame extending over six

feet Mr. Howell's voice is resonant and deep . Loud words by Howell gets a person's attention .

On September 10, 1991 Flippo had it reported to him that Howell might have said

something threatening to or about another employee . Flippo called the Postal Inspectors to

investigate. Postal Inspector McMurray responded and conducted interviews on that day. After

the interviews he promptly made a verbal report to Mr . Flippo, who was also Acting Postmaster,

because Mr. Payne was absent on other duties . Based on the Postal Inspector's report Flippo

concluded that no immediate action was necessary. In due course Inspector McMurray sent a

formal letter to Postmaster Payne reporting his investigation of the September 10, 1991 incident

Mr. Payne replied that after consideration of all the matters he concluded that "Mr . Howell was not

harmful and has corrected the attitude that had caused his response. I feel no further action is

necessary in this case."

Essentially Mr. Payne had concluded there had been a communication problem and he used

that incident as reason to issue a letter on December 6, 1991 to all of his employees stating "To

provide a safe and productive workplace, threats and insinuations of threats or violence can not be

tolerated . Any of these type incidents will not be taken lightly. All cases will be reported to the

Postal Inspection Service and appropriate disciplinary, including removal will be taken ." Although

it was clear Mr. Howell had issued a threat, the Postmaster was influenced not to attempt discipline,

because soon after the incident Mr . Howell apologized to the alleged victim for the words he had

spoken.

In a sense Mr . Payne was prescient In the years immediately subsequent to his issuance of

the letter, various reports of violence among Postal employees were carried on the media . The

actions within the Postal System to discourage violence and threats of violence is well known . On

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One such action was by Alabama District Manager Walter Moon. On February 9, 1996 he sent a

letter to all of his Postmasters and other Managers concerning threats and violence in the workplace .

That letter was sent and read to all of Dothan's employees. The letter emphasized that "Threats of

any kind will not be tolerated. Any employee who threatens a coworker or supervisor will be

disciplined up to and including removal. Employees who threaten others either physically or

verbally can expect the severest of disciplinary actions up to and including removal, as well as the

possibility of criminal charges ." Despite that memorandum by the District Manager and the earlier

statement by Postmaster Payne, some other incidents have occurred, even in Dothan . For example,

on December 19, 1996 an employee reported a threat There is no doubt that words of a threat were

spoken. Manager Flippo investigated and accepted the explanation by the accused person that he

had no intent to harm. No Postal Inspectors were called to investigate and Mr. Payne decided that

no action was appropriate.

Several weeks later on January 6, 1997 Letter Carrier Daryl Jones was casing his mail a few

minutes after 7:00 AM at the Poplar Head Annex . The back of his case adjoined the back of Mike

Howell's case. Grievant Howell, wearing earphones and listening to the radio , was casing flats. As

his flats landed they struck the rear of his case, making a loud noise . Jones became angry and

resentful. At first he cased his flats in the same manner, viz . throwing them hard to hit loudly

against the rear of his case . Howell continued to throw his flats which also struck loudly. Then

Jones pounded with his fist on the back of the case . Howell came around his case and entered the

front of Jones' case. Both men were profane . The statements by Jones are not clear . There is strong

evidence that Howell said "I'll kick your fat ass." Jones, who weighs about 300 pounds, came

forward to meet Grievant, who was standing in the entry of Jones' case. Both men came within

inches of each other, and both had their hands raised . Howell used his anus to push Jones' arms

down. Jones backed up. The insults by both men continued but without any further physical

H94N-4H-D 97060906 and ND 2073 PAGE 18

contact, until Carrier Goff came to them and told them to cool it. 204-B Supervisor Dino Hall also

told them to cool it and told Howell to return to his case . Both men went back to their casing, and

no further incident occurred.

Manager Flippo appeared shortly and heard an account of the incident from Dino Hall . He

briefly questioned Jones, Howell and Goff, and then called for Postal Inspector McMurray.

McMurray and another Inspector later appeared and interviewed both participants and the few

witnesses. The witnesses all told essentially the same story mentioned above, although not

everyone had seen Howell's arms push against Jones . Inspector McMunay concluded that it was

not an "actionable threat/assault for federal prosecutive action" and for that reason he felt no

further attention from the Postal Inspector Service was warranted. McMurray did say he would

send a written report to Bane Payne within a few days, and he did so, by letter dated January 10,

1997.

The next day Flippo reported the incident to Mr . Payne, who had been away. Mr. Payne

reported to the District Threat Management Team about the incident and over the next few days

discussed the matter with the team members, Operations Management and Labor Relations.

A day or two after the incident Howell apologized to Jones and Jones said that he too was

sorry about the incident .

Payne and Flippo discussed what to do about the incident with District representatives .

Finally, Debi Edmunds, a District Labor Relations Specialist based in Montgomery, was sent to

Dothan to interview participants and counsel Bane Payne and Flippo . She came to Dothan on

January 15 and interviewed Howell and the witnesses, but not Jones, who was not present that day .

After interviewing the witnesses Edmunds discussed the situation with Payne and Flippo . It was

decided that Flippo would call Howell that night at his home and tell him he was placed on

emergency suspension effective January 16"' . That was done.

H94N-4H-D 97060906 and ND 2073 PAGE 19

Flippo and Payne discussed the possibility of disciplinary action and they concluded, based

primarily on the actual physical contact (viz. Howell's arms against Jones) and on Howell's

statement, "I'll kick your ass," that the zero tolerance policy required Grievant's removal . They

were also influenced by the 1991 file, which is mentioned above, concerning the allegations against

Grievant. Apparently they were advised that the "1991 incident [could be] cited for reactionary

behavior and increase in aggressive behavior . " To Payne and Flippo that meant that the current

incident was a repeat and extension of what had happened in 1991, and, in a sense, a warning of

what might happen again unless Grievant was removed.

EVALUATION

Article 14 of the Agreement states " . ..the responsibility of management to provide safe

working conditions . .. and to develop a safe working force ." The Postal Service takes that obligation

very seriously and recognizes that the responsibility extends to employee conduct Pursuant to that

obligation Postmaster Payne issued his 1991 policy statements, and Alabama District Postmaster

Moon issued his 1996 Policy . Both statements were communicated to al Dothan employees .

The Postal Service also has duties and rights in respect to imposition of discipline of

employees, particularly those stated in Article 16 of the Agreement. Simultaneously fulfilling the

obligations under both Articles 14 and 16 sometimes involves a delicate balance of action to insure

that the obligations of both sections are strictly respected . The subject case shows the intersection of

these two interests.

Placement of Grievant on off-duty status (without pay) effective January 16,1997

Within an hour after the subject incident on January 6, 1997 Flippo had received a report

from Dino Hall about the facts, interviewed the participants and witnesses and called the Postal

Inspectors. The inspectors also interviewed the participants and witnesses . Postal Inspector

H94N-4H-D 97060906 and ND 2073 PAGE 20

McMurray gave an oral report to Flippo about the facts, which duplicated what Flippo already

knew. Several days later McMurray sent his formal report to Postmaster Payne . By that time Payne

had the story from Flippo and was discussing the incident with him, as well as with their superiors

in Montgomery and elsewhere in the Alabama District . At some length Flippo and Postmaster

Payne considered what, if any, discipline they should take . They did not consider Emergency

Placement until Labor Relations Specialist Edmunds arrived from Montgomery to re-interview the

witnesses and counsel Flippo and Payne regarding what should be done . After she completed her

interviews on January 15 she met with Flippo. That evening he called Grievant at home to

announce the Emergency Placement effective the next morning . Nine calendar days had passed .

In that period Grievant had worked eight days without any incident or threat of incident

Section 16.1 of the Labor Agreement provides "an employee may be immediately placed on

an off-duty status . . .when the employee may be injurious to self or others ." That section of the

Agreement may be relied on where a Supervisor acts on a good faith, reasonable belief that an

employee may be injurious to self or others. Here, Flippo testified in arbitration that after the

altercation he did not believe Howell might be injurious to Jones . The passage of time without any

consideration of Emergency Placement until after the counseling of the Labor Relations Specialist is

further evidence of the absence of any such belief. Therefore, we find the Emergency Placement was

not authorized by Section 16.7 of the Labor Agreement .

The Removal of Grievant

No interrogation rights of Grievant were violated by the Postal Inspectors or by the Labor

Relations Specialist .

The evidence shows that both Grievant and Jones were disrespectful and discourteous to

each other. Grievant was disciplined; Jones was not Under the evidence there was a significant

difference in their conduct First, only Grievant made a threatening statement, viz. "I'll kick your

H94N-4H-D 97060906 and ND 2073 PAGE 21

ass." Second, although both men had a hostile demeanor and stood face to face, it was Grievant

who took the action striking Jones' arms by pushing them down . Those two distinctions were

relied on by the Service to justify disciplining Howell, but not Jones . We do not accept the Union's

claim that there is not an adequate difference in the conduct of the two men to permit discipline of

one but not the other. Howell went far beyond disrespect when he made a threat and initiated

physical contact. But for the forbearance of the two and the intervention of Goff, a more serious

incident might have happened .

We do believe, however, the Union raises a legitimate query as to whether there was just

cause for removal. The explanation given by the Service is that " . . .grievant is a violent and

irrational bully and should not be allowed to return to his job ." The Service says Supervision cannot

"allow this type of employee to continued to escalate in his violent outburst until someone really

gets hurt or killed ." What basis in fact is there for these statements in the Postal Service Position?

First the Service cites the 1991 incident, submitted under the title page "1991 Incident Cited for

Reactionary Behavior and Increase in Aggressive Behavior ." That document was conditionally

admitted over objection the Union's objection . The document contains a report by Postal Inspector

McMurray as to an investigation he made on September 10, 1991 "relating to the conduct of

Grievant" and another employee . The Arbitrator conditionally admitted this document (M-2),

reserving judgment later to its admissibility and weight . We find that M-2 cannot properly be

admitted to show prior attempts to correct improper behavior, which were unsuccessful so that

removal for a repetition of the behavior is now justified . In the first place, the documents reveal that

no discipline was given the Grievant, and only words were involved in the 1991 incident

Furthermore, if any actual discipline had been issued in 1991, the document would be barred by

Section 16 .10 of the Agreement

On the other hand, evidence of past violent behavior could be admitted to show a

H94N-4H-D 97060906 and ND 2073 PAGE 22

propensity of the Grievant for such behavior, if the account is credible . Actually, we find that M-2 is

simply hearsay and secondary without the necessary protection, so it is of little weight to show a

violent nature by Grievant . Even more damning, the 1991 incident shows no evidence of violent

behavior by Grievant. Proof of that is the statement by Postmaster Payne to Postal Inspector

McMurray as follows: "I feel that Mr. Howell is not harmful and has corrected the attitude that

caused this response. I feel no further action is necessary in this case." In other words, Grievant

does not have a record of violence . The subject offense on January 6, 1997 is the first such event .

The only other evidence by the Service to show Grievant is violent and has committed violence is

his size and Marine Corps experience in Vietnam . Citing his size and military service to prove a

violent nature is improper if not outrageous .

As has been recognized by the Postmaster Barre Payne, the workroom floor, where many

employees work in close proximity to each other, can be stressful . The event in question is not

untypical misbehavior. Fortunately, many employees have received the message against violence

in the workplace by the various levels of Supervision. For example, as soon as the instant flare-up

occurred on January 6, other Carriers led the way to stop the altercation before it proceeded to

significant violence .

Messrs. Flippo and Payne reasonably were greatly concerned with that degree of violence

which had occurred . We agree that Grievant's conduct was just cause for discipline . Under the

circumstances of this case, however, we find there was not just cause for removal. Section 16.1 of

the Agreement that "discipline should be corrective in nature, rather than punitive ." To justify

imposing removal the Postal Service must show that that degree of discipline was necessary to

achieve correction; no lesser degree was available for that purpose . To make that showing the

Service may show, if correct, that discipline was imposed for similar misconduct in the past but

Grievant did not respond . As already mentioned, Grievant had not engaged in the same conduct in

H94N-4H-D 97060906 and ND 2073 PAGE 23

the past and had not received discipline for it Otherwise, the Service must show that Grievant's

misconduct was so serious that he could not work with other Carriers in the future. Here, Grievant

did work peacefully with Jones after the altercation . Furthermore, at arbitration Jones

acknowledged that he did not really fear that Grievant would again engage in the same or worse

conduct in the future .

Grievant has had a good record for 27 years. The two documents relied on by the Postal

Service to remove Grievant were Postmaster Barre Payne s 1991 Notice to Employees and the

District Manager's 1996 Memorandum concerning threats and violence in the workplace . Both

documents emphasized that "these type incidents will not be taken lightly . . .. Appropriate

disciplinary action including removal will be taken ; any employee who threatens a coworker . . .will

be disciplined up to and including removal . Employees who threaten others, either physically or

verbally can expect the severest of actions up to and including removal . . .." Neither of those

documents or policies specifies that an violation of the policy will be met with removal, and it

would be improper to so construe. Unfortunately, Messrs. Flippo and Payne understood that the

"zero tolerance for threats and violence which the Alabama District maintained meant that if

Supervision believed that an employee violated the policy by committing any threat or degree of

violence, that employee must be removed . There are grounds to find that District officials have

nurtured that belief among Supervisors . In any event, Flippo and Payne believed they were

required by District policy to remove Grievant. Such a policy on its face violates Section 16.1 of the

Agreement. The generalization to remove any and every case of violence or threat is not permitted

by Section 16.1. Each case must be decided on its own .

Under all these circumstances we find that removal was arbitrary, capricious and

unreasonable. Grievant is an intelligent person. He realizes, as shown at the arbitration hearing,

that he allowed himself to be discourteous and disrespectful and to get angry rather than using

H94N-4H-D 97060906 and ND 2073 PAGE 24

some other technique to meet the challenge of Jones' banging on the case. A three-month

suspension and loss of the corresponding pay would have dramatically emphasized to Grievant

that he could not repeat the action in the future .

We read all of the citations submitted by the Postal Service. No arbitration decision supports

the general principle that removal is justified for every threat or violence of any kind . One of the

citations was by this Arbitrator where the incident was much more severe . Even there this

Arbitrator reduced the discipline to a six-month suspension . It is not proper to make a blanket rule

where every violation of a regulation or policy is just cause for removal. The individual

circumstances must be considered and the standards in Section 16 applied .

Perhaps substantial discipline for his misconduct on January 6, 1997 will not guarantee no

repetition by Grievant, but the Service is required to attempt correction here . Removal on this first

violation under the circumstances of this case would be arbitrary and unreasonable in the face of the

corrective principle announced in Section 16 .1 of the Agreement by the Parties . It has been made

abundantly clear to Grievant that he must not be profane, abusive, or violent in the future .

H94N-4H-D 97060906 and ND 2073 PAGE 25

AWARD

The Emergency Placement was without just cause . The Service is directed to make

Grievant whole for the period of his Emergency Placement .

There was just cause to discipline Grievant, but not to remove him . The Service is

directed to rescind the Removal, convert the disciplinary action to an extended suspension of

three months, reinstate Grievant and make him whole for the wages and benefits lost as result

of the improper removal. The Arbitrator retains jurisdiction until January 31, 1998 solely for

purposes of deciding any dispute as to the meaning of or compliance with this Award .

NioKolas Duda Jr., Arbitrator X