REGULAR ARBITRATIONSOUTHERN PANEL

In the Matter of Arbitration Underthe Labor Agreement Between

UNITED STATES POSTAL SERVICEThe Employer or Service

-and-

NATIONAL ASSOCIATION OF LETTERCARRIERS, AFL-CIO

The Union

BEFORE: NICHOLAS DUDA JR., ARBITRATOR

APPEARANCES :

For the US- Postal Services :

For the Union :

Place of Hearing :Date of Hearing:

GRIEVANT: Nancy R . Slaughter)POST OFFICE: Webster, TX

MANAGEMENT CASE NO :G90N-4G-D 96004291

UNION CASE NO: 0015995DA,GTS 017698

ND NO: 1925

Tommy L. CurtisLabor Relations SpecialistUS. Postal Service401 Franklin Street, Room 406Houston, TX 77202-9401

Reece E. CoxNational Association of Letter Carriers2522 3rd Ave. S .Texas City, TX 77590-8210

Webster, TXOctober 17,1996

AWARD

The grievance is sustained . The subject suspension is to be rescinded and expunged from

Grievant's record.

Nicholas Duda Jr., ArbitratorMarch 12,1997

G90N-4G-D 96004219 ND 1925 PAGE 2

SUBJECT:Seven-Day Suspension of Carrier "Charged with Unsatisfactory Safety Performance ;

specifically, Failure to Yield Right-of-Way for Your Actions on February 13,1995 ."

NATURE OF THE CASE

On February 13, 1995 the LLV Grievant was driving was involved in an accident. More

than month later she was given a Notice of Seven Day Suspension. Several months later a written

appeal was filed in Step 2 . A Step 2 hearing was held, followed by a denial which asserted

untimeliness. More processing was had in the grievance procedure and then the Union appealed

to Arbitration. This decision decides the issues in the grievance .

GRIEVANCE CASE FILE

3/27/95 Notice of Seven Day Suspension

Reason for Disciplinary Action : . . .unsatisfactory safety performance. OnFebruary 13, 1995 . . . you were involved in a preventable vehicle accident . . . youwere attempting to make a right turn on to the feeder . . . when you collided withthe right side of a privately owned vehicle . . . causing damage . . . .You are chargedwith unsatisfactory safety performance ; specifically, failure to yield right-of-wayfor your actions on February 13, 1995 .

Date and time of suspension: Commencing 4-10-95 . Ending 4-16-95 .

I RECEIVED THE ORIGINAL OF THIS LETTER ON Monday .SIGNATURE: Nancy Slaughter DATE: 4-3-1995

4/26/95 Agreement Between Grievant Nancy Slaughter and Supervisor Thermalene Brown .

SUBJECT: Modified Article 16 Deferment

I Nancy Slaughter . . . accept the provisions under the modified Article 16 process

G90N-4G-D 96004219 ND 1925 PAGE 3

and request the Notice of Suspension dated 3-27-95, be deferred until settlement inthe grievance/arbitration procedures . I will accept the final settlement underthose procedures. I understand that I will not serve the suspension/removal perearlier notice until final settlement/ arbitral decision . . . .

Grievance dated 4/26/95 by Steward Ted O'Bryan which he submitted on 9/12/95 to PostmasterJ. Pugh

Violation : Article 16

Other Grounds: Unsafe design of Postal Vehicle (LLV) . Grievance was not donein a timely matter .

Facts : Because of the design of the LLV, we believe Nancy could not see the oncoming car. No citation was issued!

Grievance has been delayed by management, causing Nancy mental anguish overthe possibly suspension .

Union Contentions: Nancy drives in a high traffic area. She has a good drivingrecord. We believe it was the design of the LLV which cause[d] the accident

Grievance has been delayed till management hired two new PTF's, so they wouldhave person[n]el to cover the RT's .

Corrective Action Requested : Drop all disciplinary action and remove accidentfrom Nancy's file .

4/26/95 Statement by Grievant attached to the Step 2 Appeal

I pulled up to the feeder road, stopped, looked and started to turn into the feeder .A man in a pickup truck hit me on the left front bumper, bounced off and hit meagain. He could not get stopped for about 150 to 200 feet down the road, so hepulled into Nasa . . .Backyard which is about 200 or more feet from where theaccident occurred. I followed him and pulled in there behind him, got out and hesaid, "I didn't think you were going to pull out ." I said I was sorry and did not seeanyone coming on the inside lane which I was turning into . I told him I did notknow what to do except call my Postmaster and went inside and called JerryPugh. . .He came in and called the Police . The policeman arrived about 5 minuteslater and the postmaster arrived about 25 minutes later . I called the post officeagain about 20 minutes later and they said he had just left .

The man told the policeman that he swerved to miss me and couldn't.

G90N-4G-D 96004219 ND 1925 PAGE 4

I have an excellent driving record and work record . I have worked for the PostOffice for 15 years . Five of those years I was a clerk, but 2 of the years I was a clerkI also did Carrier work . This is 12 years of safe driving for the Post Office and 32years of safe driving for myself . I am a hard worker . I never call in sick unless it isabsolutely necessary. I work when I am sick a lot. I do a good job for the postoffice and have probably saved them a lot of money for every year of my service .

I believe in punishment where it is due, but under these circumstances I wouldthink that if the Postmaster wants to punish me for costing the Post Office somemoney, he should take a look at the ones that really cost the post office money .Also it will cost the Post Office more money to suspend me . He'll have to havesomeone else to do my route, pay overtime hours and me overtime hours when Icome back because of clean-up time . It will also make him be another personshort-handed and have to pay overtime hours .

I do not believe he is accomplishing anything by suspending anyone exceptcosting the post office more money by being short another person and using moreovertime hours.

The only thing he is accomplishing is showing his employees that he does not careabout them or their work record or reliability . He just wants to exercise his powerover employees and in the process cost the Postal Service more money . . . .

9/12/95 Grievance Summary of Step 2 Meeting written by Postmaster Pugh

Decision: Denied

Reasons for Decision: Expired time limit for Step II. Union steward did not fileStep II Appeal until 9-12-95, four months after Step I Decision . Employee did notuse safe driving procedures since this was a preventable accident .

Detailed Statement of Facts including contractual provisions and witnessstatements with their titles: Police Accident Reports reflects that N. Slaughter wasat fault since she pulled out without yielding right-of-way .

Management's Position: If employee had used safe driving procedures, thisaccident would not have happened . Due to her neglect of safe driving procedures,$2895.36 damage .

Union's Position: LLV is unsafe and prevented her seeing the on coming vehicle .Step II Appeal was not filed due to management waiting to hire more employeesto cover her suspension .

List [Management ] Settlement Offers: Offer to reduce suspension to 3 days atStep 1. Offer to reduce suspension to 3 days including Thursday, Friday andSaturday with schedule long week-end. Employee would have lost 1 day's pay . . . .

G90N-4G-D 96004219 ND 1925 PAGE 5

9/12/96 Letter from Supervisor Thermalene Brown

To whom it may concern :

A step 2 meeting was setup with the Postmaster Jerry Pugh and the UnionSteward Ted O'Bryan to discuss the grievance concerning [Grievant] . . . .Themeeting did not occur due to the Postmaster was unavailable . The Postmasterscheduled a second meeting and the Postmaster had a meeting in North Houstonand he was unavailable for the second meeting regarding the Nancy Slaughtercase . . . .

9/25/95 Step 2 Decision by Postmaster Pugh

Grievance is denied due to expired time limit for Step II under Article XV Section2. Appeal for Step II was untimely and grievance is also denied due to employeeSlaughter being involved in a vehicle accident that was preventable on her part .

9/29/95 Appeal to Step 3 by Branch President Vernon Wade

Reasons for Appeal: Because of the design of the LLV, we believe Nancy couldnot see the on coming car . No citation was issued . Carrier was issued a Seven (7)Day Suspension for Unsatisfactory Safety Performance .

Corrective Action Requested : Drop all disciplinary action and remove accidentfrom Nancy's file . . . .

10/20/95 Step 3 Decision by Labor Relations Specialist Linda Womack

The grievance is denied .

The grievance was untimely appealed. Therefore, in accordance with theprovisions of Article 15 Section 3B, the Union waived their right to pursue thismatter . . . .

G90N-4G-D 96004219 ND 1925 PAGE 6

Unsatisfied with that decision, National Business Agent Gary Mullins appealed to

Arbitration.

At the arbitration hearing the Parties submitted argument and evidence, both

documentary and testimonial, on claims of untimeliness by the Postal Service and due process

claims by the Union, as well as on the issue of the merits of the just cause claim by the Service . The

Postal Service also submitted arbitration decisions . The Parties took the Arbitrator to visit the site

of the accident in question . At the end of the hearing, Grievant expressed her satisfaction and

appreciation for the representation by the Union . Later the Union submitted a post-hearing

statement with approximately seventeen decisions .

POSITIONS OF THE PARTIES AT ARBITRATION

POSTAL SERVICE POSITION

1. The grievance was not processed in timely fashion as required by the provisions of Article

15. Notwithstanding that, the Parties were responsible for the delays, the bare fact is the time

limits were not satisfied ; the grievance should be considered as waived .

2. Grievant had a preventable accident .

She was charged with failure to yield . An accident resulting from failure to yield right-

of-way is a preventable accident, as defined in the Houston, TX District Instruction for Operation

of Vehicles.

Under the Houston policy Postmasters `will carefully review accidents involving

violations of the following safety rules , and will issue a seven (7) day suspension if the facts

warrant:

1 . Failure to wear seat belts . . . .

G90N-4G-D 96004219 ND 1925 PAGE 7

2. Dismounting from a vehicle while the engine is running .

3. Violations of safety regulations or negligence , which will cause the vehicle to rollaway.

4. Hitting a fixed object.

Under these rules Postmaster Pugh was required to impose a seven day suspension on Grievant

for her actions .

3 . There is no requirement to have progressive discipline . It is up to the Service to determine

the reasonable or appropriate level of discipline necessary for correction , and the Service has done

so .

Therefore the grievance should be denied .

NALC POSITION

ARBITRABILITY - TIMELINESS

. . . When a grievance is filed with the installation head, he has the responsibility for settingthe time and meeting with the steward . . .no later than seven (7) days following receipt ofthe Step 2 appeal . . .the Postmaster continually asked for postponements . . . after severalmonths . . . the Postmaster informed the Steward that they needed to complete thegrievance process, which was eventually held on September 12, 1995 . . . .thirteen (13) days,afterward in his Step 2 decision letter, made a new management argument . . . by allegingthe grievance was untimely . . . .

. . .Management and the Union have been traditionally lax in the strict observance of timelimits (for both parties) on the processing of grievances in the Webster Post Office . . . .

The official dates to serve the suspension . . . was set for April 10 through April 16 . Thesedates came and went without Ms Slaughter ever serving the suspension. By notinvoking the suspension on the official dates set, and/or - offering the grievant aModified Article 16 deferral, management waived their right to impose any type ofpunishment .

Although, the National Agreement requires the Step-One decision to be rendered no laterthan five (5) days after the meeting, the decision was not given until twenty-nine (29) dayslater on April 26 .

Sixteen (16) days after the official designated date for the start of the suspension and ten(10) days after the end of the officially designated date for the suspension (which was notserved) Ms. Slaughter signed a LMU Modified Article-16 deferring the discipline until

G90N-4G-D 96004219 ND 1925 PAGE 8

final adjudication. This is a due process violation. Management earlier waived their rightto impose this discipline by not invoking it on the dates officially established . They made

a serious administrative error and to cover it up they made the grievant sign an after-the-fact agreement to postpone a suspension which had never been served . This is a clearcase of double-jeopardy .

As soon as the Step-One decision was rendered, the steward prepared the Step-TwoAppeal. Management would not set a date for the meeting and verbally requested severaldelays for various reasons . . . this was accepted in good faith as a mutual postponement onthe part of the Union. This version of events will be confirmed by Ms. ThermaleneBrown, who was the carrier supervisor at the time . . . .

By making a late claim that this case is untimely, management is trying to cloud the issueand is also trying to hide the fact that there was a mutually understood agreement topostpone the Step-2 meeting . . . .

There was not just cause

. . .Ms. Nancy Slaughter, a fifteen (15) year Postal Employee serving as a Letter Carrierassigned to the Webster Post Office. A Notice of Suspension. . . was given to Ms. Slaughter

on April 3, 1995. She was charged with Unsatisfactory Safety Performance for anunfortunate incident which occurred on February 13, 1995, when a civilian driver collidedwith her Postal vehicle . . . .

. . .In four more months it will have been two years since this vehicle incident took place .In all this time the grievant has maintained a perfect safety record and has not beencharged with any type of infraction . . . which would warrant disciplinary action. UnderModified Article 16, a grievant's record, between the time the discipline is issued and thetime the arbitration is heard, may be raised . . ..The grievant had a perfect record prior tothis incident and . . .even if the grievant were somehow found guilty of having violated aspecific safety rule, the 7-day suspension was never issued as a corrective determent, but

was issued as a standard punitive measure . . .

. . .the disciplinary action was initiated without a thorough review of all the facts . For

instance :

The letter of charges states . . . when you collided with the right side of a privately ownedvehicle. . . .

The underlined statement above is false - it was the privately owned vehicle whichcollided with the grievant.

. . .there were no witnesses, therefore, management's statement is mere speculation . Ms .Slaughter, after looking in all directions, pulled out and her vehicle was almost completelystraight and in the far right hand lane going forward when the civilian vehicle hit her onthe left front bumper, knocking her against the curb . The civilian vehicle was made to

G90N-4G-D 96004219 ND 1925 PAGE 9

stop until he was almost a block away .

. . .Neither the policeman arriving on the scene, or the Postmaster, arriving a while later,ever went back to the actual scene . If they had, they would have been able to see themarks of where the Postal vehicle was knocked against the curb, which would haveshown that Ms. Slaughter had almost completed her turn onto the feeder road when shewas struck. The distance it took the civilian driver to stop would certainly indicate that hewas traveling at a very high rate of speed .

. . .there is a serious blind spot and safety hazard caused by the placement of the side-view "double-decker" mirrors on the Postal vehicle; which, along with the high rate ofspeed of the civilian driver, contributed to the grievant not being able to see the on-comingvehicle .

The Houston District Instruction policy, that every vehicle accident warrants automaticpunishment is a clear violation of the due process and just cause doctrines of the NationalAgreement.-Each accident warranting discipline must be judged on its o[w]n merits anddiscipline imposed accordingly .

This has been reinforced in a Step-4 Decision, dating back to August 4, 1982, made at thehighest levels of Postal Management . It states in part, 'We are unaware of the existence ofany discipline standards for "at fault" vehicle accidents, hence any discipline taken mustmeet the "just cause" provisions of Article XVI of the National Agreement.' Ms.Slaughter has no prior discipline in her record (not even discussions) and managementhas failed [to] show how a 7-day suspension can be justified as being corrective .

. . .management has not. . .be able to prove it had ' just cause' for this punitive 7-daysuspension . We ask the Arbitrator to sustain this grievance in whole and request allactions arising out of this incident be removed from all records - not to be cited again inany forum.

ISSUES

1. Was the grievance waived because of untimely appeal to Step 2?

2. If the grievance was not waived, was there just cause to issue the seven-day

suspension, and if not, what remedy is appropriate?

RELEVANT EXCERPTS FROM THE SUBMISSIONS

FROM THE LABOR AGREEMENT

ARTICLE 15 - GRIEVANCE PROCEDURE - STEPS

G90N-4G-D 96004219 ND 1925 PAGE 10

Step 1 :(a) Any employee who feels aggrieved must discuss the grievance with theemployee's immediate supervisor within fourteen (14) days of the date on whichthe employee . . . first learned . . .of its cause . . . .

(c) If no resolution is reached . . . the supervisor shall render a decisionorally . . . . Within five (5) days after the supervisor's decision, the supervisor shall, atthe request of the Union representative, initial the standard grievance form that isused at Step 2 confirming the date upon which the decision was rendered .

(d) The Union shall be entitled to appeal an adverse decision to Step 2 . . .with ten(10) days after receipt of the supervisor's decision . . . .

Step 2:

(c) The installation head. . . will meet with the steward. . . as expeditiously aspossible, but not later than seven (7) days following receipt of the Step 2 appealunless the parties agree upon a later date . . . .

Section 3. Grievance Procedure - General

B. The failure of the employee or the Union in Step 1, or the Union thereafter tomeet the prescribed time limits of the Steps of this procedure . . . shall be considereda waiver of the grievance . . . .

ARTICLE 16 - DISCIPLINE PROCEDURE

Section 1 . Principles

. . .a basic principle shall be that discipline should be corrective in nature, rather thanpunitive. No employee may be disciplined or discharged except for just cause . . .

5/26/93 Houston District Instruction

Subject: OPERATION OF VEHICLES

10. Accidents that may be considered as due to carelessness can involve, but are notlimited to any of the following :

b. Roll-away or run-away vehicle

G90N-4G-D 96004219 ND 1925 PAGE 11

c. Hitting a fixed object

f. Failure to yield right-of-way

Violations of safety rules continue to contribute to numerous preventable vehicle accidentsand personal injuries in the Houston District. For this reason, Postmasters and managerswill carefully review accidents involving violations of the following [four] safety rules andwill issue a seven (7) day suspension if the facts warrant :

1. Failure to wear seat belts . . . .2. Dismounting from a vehicle while the engine is running .3. Violations of safety regulations or negligence, which will cause a vehicle to roll away.4. Hitting a fixed object . . . .

3/'7/95 Vehicle Accident Investigative Summary by Postmaster Pugh

On February 13, 1995 [private citizen] Morell was traveling south on feeder Rd (I-5) andpostal vehicle [driven by Grievant]was pulling out of shopping center parking lot . Mr.Morell collided with the left front fender of the postal vehicle with the right side of hisvehicle .

There were no injuries sustained in the accident.

The postal driver stated that she did not see any vehicles approaching as she pulled outinto the feeder road . The private driver stated that he tried to swerve to miss the postalvehicle but was not able and collided with the left fender of the postal vehicle .

There were not witness to the scene of this accident .

Damages to the postal vehicle were to the left front fender, mirror, mirror brackets andbumper. Estimated damage to repair is approx . $500 .00. Damages to the private vehicleare the right door, right quarter panel, right rear fender and wheel well. Estimated cost torepair is approx. $2000.00 . . . .

Webster Police Officer Fred Hoffman, #620 investigated this accident . The postalemployee was not issued a citation, but was told by the officer that she was at fault of thisaccident .

. . .I find the postal employee at fault for failure to yield to on coming traffic from a privateparking lot.

G90N-4G-D 96004219 ND 1925 PAGE 12

8/10/95 Letter from Postal Service to ITT Hartford Insurance

The claim filed by you pursuant . . .has been considered. A settlement Treasury Check is

enclosed in the amount of $2,895 .36, payment in full . . . . .

Excerpt from Texas Motor Vehicle Law

Section ¢J2. Emerging from alley, driveway or building. The driver of a vehicle within a

business or residence district emerging from an alley, driveway or building shall stop suchvehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extendingacross any alleyway or driveway, and shall yield the right-of-way to any pedestrian asmay be necessary to avoid collision, and upon entering the roadway shall yield the right-of-way to all vehicles approaching on said roadway . . . .

M-1 CITY DELIVERY CARRIERS MANUAL

110 RESPONSIBILITIES OF CARRIER

112.4 Safety

Conduct your work in a safe manner so as not to endanger yourself or others . . . .

810 VEHICLE REGULATIONS AND SAFETY PRACTICES

812.2 Observe all traffic regulations prescribed by law . Rules applying to the public alsoapply to operations of postal vehicles .

812.4 . . .You must use mirror to check for pedestrians ahead, in back, and on both sidesbefore placing the vehicle in motion .

ANALYSIS

FINDINGS OF FACT

Grievant has been a Postal employee for seventeen years. During the last twelve of those

years she has operated Postal vehicles . In recent years she has been assigned to Route 14.

She is considered a very good employee, does not have any discipline on her record and

has not been the subject of any complaints about her operation of Postal vehicles .

G90N-4G-D 96004219 ND 1925 PAGE 13

Grievant claims, without contradiction, that she had been driving 32 years before

February 13,1995 and had a record of "safe driving ." The Service does not contradict any of those

claims. Shortly after noon on February 13, 1995 Grievant finished delivering an area adjacent to

a feeder road for Gulf Freeway . She attempted to enter the two-lane southbound feeder road .

Only a right turn was permitted, because both of the lanes were southbound . The posted

maximum speed for the feeder is 45 miles per hour .

The Arbitrator viewed the scene on the day of the hearing at about the same time as

Grievant had attempted to make a right turn onto the feeder on February 13, 1995 . When the

Arbitrator viewed the scene there was considerable traffic, most of which proceeded at about 50

to 55 miles per hour . There's no dispute as to what happened when Grievant attempted to enter

the road. Just as she entered the road and before her vehicle had completed the turn or was fully

on the road, there was a collision between the left front bumper of her vehicle and the right side of

a pickup truck driven by another person . Damage to the other vehicle was about $2500 ; damage

to Grievant's LLV was about $500 .

When Supervision arrived in response to her call Grievant explained, as she did

throughout the case and to the Arbitrator at arbitration, that she had stopped and looked to the

left but didn't see any cars coming, so she pulled out . Her only explanation for not seeing the

oncoming vehicle was that it might have been in the "blind spot" caused by the mirrors .

Grievant felt that even if she was at fault in any way, any type of discipline, even a one-day

suspension, would be counter-productive and unfair, because of her record of long good service .

All essential evidence about responsibility for the accident was collected by Supervision

on the day of the accident, February 13, 1995 . Those facts were reviewed by Supervision,

Postmaster Pugh and higher officials in the Post Office at Houston. On February 22nd a pre-

disciplinary hearing was held with Grievant at which she essentially repeated her explanation .

G90N-4G-D 96004219 ND 1925 PAGE 14

On March 27, 1995 the Postmaster signed the subject Notice of Suspension for seven days .

Grievant was available to receive the letter , but it was not given to her . Instead, attempts were

made to have Grievant accept and agree to suspension for some lesser period of time . She

refused . Supervision insisted that unless she agreed to lesser discipline, the March 27 letter would

be issued . Grievant still refused and insisted on having a Step 1 hearing with her Supervisor,

Thermalene Brown. Such Step 1 hearing was held on March 27, although the suspension notice

had not yet been delivered to Grievant. It was finally given to her on April 3, 1995 . At that time

the Step 1 decision had not yet been given to Grievant . That decision was requested because the

Union wanted to enter the decision date on the Step 2 form and deliver it to the Postmaster with a

request to have the Step 2 hearing .

Webster Post Office has a local procedure under which when a Step 1 decision is not

acceptable , the Steward requests a meeting with the Postmaster , at which time he presents a

written a Step 2 appeal, and the Step 2 hearing is conducted . In this case Supervision refused to

give the Step 2 decision for more than 20 days after the Step 1 meeting , thereby violating the five-

day limit on answer specified in Article 15 .

Then on April 26 Supervisor Thermalene Brown requested Grievant to sign a "Modified

Article 16 Deferment," which is quoted above . This provided that the Notice of Suspension

would be " deferred until settlement in the grievance /arbitration procedures . . . . I understand that I

will not serve the suspension . . . per earlier notice until final settlement /arbitration decision." The

Service wanted this agreement to validate the procedural irregularity of having the seven-day

suspension period come and go , while at the same time permitting Grievant to continue working

while they "worked on her" to accept a lesser penalty . On the day Grievant signed the "Mod-16

Agreement" Supervisor Brown said she would give the answer on the Step I grievance - a denial

- and Steward Ted O'Bryan immediately completed the standard grievance form, which he dated

G90N-4G-D 96004219 ND 1925 PAGE 15

April 26,1995 .

O'Bryan asked for a Step 2 meeting with Postmaster Pugh, intending in the normal

manner to appear with Step 2 grievance in hand for the hearing. Mr. Pugh set at least two

hearings for which the Union appeared as scheduled but Mr . Pugh did not. This situation

dragged along for several months with O'Bryan seeking a hearing but not receiving one . In the

meantime Mr. Pugh did speak to Mr . O'Bryan, making several offers to reduce the discipline .

Grievant steadfastly refused any settlement, insisting that the discipline be removed from her

record. Finally a Step 2 hearing was scheduled by Postmaster Pugh for September 12 . At that

time he received a copy of the written Step 2 grievance and the hearing was held . He denied the

grievance saying, "expired time limit for Step II . .. and grievance is also denied due to employee

slaughter being involved in a vehicle accident that was preventable on her part ." Incensed that

the Postmaster had asserted untimely filing, the Union requested Thermalene Brown to sign a

statement. That statement is quoted above, showing that Step 2 meetings had been set up by the

Postmaster and Mr. O'Bryan, but the meetings did not occur, because the Postmaster was not

available. At least two such meetings had been set and then canceled . Thermalene Brown did not

contradict that statement when she testified at arbitration .

EVALUATION

On the Postal Service claim of untimely appeal to Step 2

We do not find merit to this claim. The Union followed the established procedure at

Webster for handling cases and moving cases from Step 1 to Step 2 . The five-month delay

resulted from attempts by Supervision and the Postmaster to get the Union and Grievant to accept

settlement offers and by the Postmaster's failure to schedule a Step 2 hearing . He did not appear

until the third meeting he scheduled . The Postal Service extended the Union's time to actually

G90N-4G-D 96004219 ND 1925 PAGE 16

present a paper called the Step 2 appeal. Orally, the Union had notified Supervision very

promptly that it was appealing to Step 2 and had a written appeal prepared . The only reason it

wasp t completed was that Thermalene Brown would not give her answer timely .

2. The just cause issue .

The Union argues that no discipline should be issued because there is a "blind spot"

caused by the side view mirror, and the other driver was traveling at a "high rate of speed ."

Without doubt, there is a certain obscurity caused by the mirrors . However, this Arbitrator got

into the driver's seat after Grievant positioned the LLV at the accident site. When the Arbitrator

looked in the direction from which the other driver approached the Arbitrator saw no blind spot,

because the line of vision was to the left of the mirrors . If she could not see the feeder road, she

should not enter until she arranged a clear view .

Grievant attempted to enter the feeder road when the other driver had the right-of-way .

That was just cause for corrective discipline . In deciding the level of corrective discipline

Supervision had available a Letter of Warning, a suspension of less than fourteen days, a

suspension of more than fourteen days or discharge . The seven-day suspension was imposed .

Supervision is required to evaluate the facts and make a decision about discipline. In this case,

Supervision properly decided there was cause for discipline. Supervision also decided the

Houston Operations Instruction Manual of 1993 required a seven-day suspension . The incident in

question was not a "minor offense ." However, Grievants "fault" - "failure to yield right-of-way"

- is not was not one of the four causes listed in section II-J of the Operation manual which

Management relied on at the arbitration hearing . We find the manual did not mandate the

suspension. Even if the manual had listed the right-of-way failure, that would cause a fatal defect

in this case, because specifying a fixed penalty and barring consideration of mitigating factors

G90N-4G-D 96004219 ND 1925 PAGE 17

makes the discipline to a punitive action, which, of course , is prohibited by the Agreement .

Under the circumstances of this case, there should have been consideration of her continuous

service and her record of long good service . None was given. We find, under these

circumstances, that the seven-day suspension was punitive in violation of Article 16 Section 1, and

was arbitrary and excessive given Grievant's service years and record .

AWARD

The grievance is sustained. The subject suspension is to be rescinded and expunged from

Grievant's record .

Nicholas Duda Jr ., Arbitrator