ARBITRATION AND AWARD

of

Ed W. Bankston , Arbitrator

In a Matter of Dispute Between :

UNITED STATES POSTAL SERVICE

and

NATIONAL POSTAL MAIL HANDLERS UNIONDivision of the Laborers ' International Union

of North America, AFL-CIOLocal No . 311

Held at : Grievance : G90M- 1G-D 96017229Coppell, TX George LewisJuly 2, 1997 DischargeAPPEARANCES :

For the Postal Service :

Mr . J .B . Reeves, Labor Relations SpecialistMr . Peter J . Donnelly , U .S . Postal Service InspectorMr. Randall Love, Supervisor , Dallas Bulk Mail Center

For the Union :

Mr . Albertus Lewis, Jr ., Administrative Vice-PresidentMr . Jerrell Swift, Assistant Chief StewardMr . George Lewis, Grievant

I .

STATEMENT OF THE CASE

The grievant , George Lewis , had been a mail handler with the

United States Postal Service (" Postal Service ") for about one (1)

year, since September 3, 1994, when on October 10, 1995, he was

issued a Notice of Proposed Removal for making false statements by

failing to report certain criminal convictions on his Application

for Employment ( Postal Service Form 2591 ) dated July 28, 1994 . His

employment was thereafter terminated . The National Postal Mail

Handlers Union, Local 311 ("Union "), immediately grieved Lewis'

removal action alleging violations by the Postal Service of various

provisions of the parties ' 1994-1998 collective bargainingagreement ("Agreement ") . The Union demanded that the grievant be

reinstated to his former employment and that he be made whole . The

matter was prosecuted throughout the various steps of the grievance

procedure without resolution. Being unable to resolve thegrievance , the matter was regularly brought before the undersigned

arbitrator for resolution pursuant to Article 15 of the Agreement .

A hearing of the matter was held in offices of the Dallas Bulk Mail

Center at Ccppell, Texas on July 2, 1997 . The Postal Service was

represented by Mr . J .B . Reeves , Labor Relations Specialist. TheUnion was represented by Mr . Albertus Lewis, Jr ., AdministrativeVice -President of Local 311 . It was agreed by the parties that the

issue was properly before the arbitrator . Each party was properly

and ably represented at the hearing and although the 'hearing was

informal , each party was provided an opportunity to support its

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Position with respect to the dispute by the testimony of swornwitnesses

, exhibits and oral arguments. The parties agreed to

waive oral summation and instead elected to provide the arbitrator

the benefit of Post-Hearing Briefs which were timely received onAugust 5, 1997

. The hearing is now closed and the matter is ripefor resolution .

II .

ISSUE

At the hearing, the parties stipulated as to the followingissue :

Whether the grievant's removal was for just cause and inconformance with the Agreement?

If not, what is the appropriate remedy?

III .

RELEVANT PROVISIONS OF THE AGREEMENT

In view of the nature of the dispute as briefly described

above, the issues to be resolved by your arbitrator, and the

positions of the parties with respect to these issues, it appears

that the following provisions of the Agreement are relevant to theresolution of this dispute .

ARTICLE 3

MANAGEMENT RIGHTS

The Employer shall have the exclusive right, subject tothe provisions of this Agreement and consistent withapplicable laws and regulations :3.1 To direct employees of the Employer in the

performance of official duties ;3.2 To hire, promote, transfer, assign, and retain

employees in Positions within the Postal Service and to

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suspend, demote, discharge, or take other disciplinaryaction against such employees ;

3 .3 To maintain the efficiency of the operationsentrusted to it ;

3 .4 To determine the methods, means, and personnel bywhich such operations are to be conducted ;

ARTICLE 12

PRINCIPLES OF SENIORITY , POSTINGAND REASSIGNMENTS

Section 12 .1 Probationary Period

B The parties recognize that the failure of theEmployer to discover afalsification by an employee inthe employment applicationprior to the expiration of theprobationary period shall notbar the use of suchfalsification as a reason fordischarge .

ARTICLE 16

DISCIPLINE PROCEDURE

Section 16 .1 Statement of Principle

In the administration of this Article, a basic principleshall be that discipline should be corrective in nature,rather than punitive . No employee may be disciplined ordischarged except for just cause . . .

IV .

STATEMENT OF THE RECORD

On July 28, 1994, the grievant applied for employment with the

Postal Service . In the course of so doing, he completed a Postal

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Service Form 2591 ("2591"), Application for Employment . Item E .7a

of the 2591 asks as follows :

Have you ever been convicted of a crime or are you nowunder charges for any offenses against the Law? You mayomit : (1) any charges that were dismissed or resulted inacquittal ; (2) any conviction that has been set aside,vacated, annulled, expunged, or sealed ; (3) any offensethat was finally adjudicated in a juvenile court orjuvenile delinquency proceeding ; and (4) any charges thatresulted only in a conviction of a non-criminal offense .All felony and misdemeanor convictions and allconvictions in state and federal courts are criminalconvictions and must be disclosed . Disclosure of suchconvictions are required even. if you did not spend anytime in jail and/or were not required to pay a fine .

The grievant responded "Yes" to the above question and provided a

detailed explanation at Item F, as follows :

'92 - Family Disturbance - Dallas, TX - served one yearprobation ;

'93 - UCW - Dallas, TX - served 6 mos . & 116 firs . comm .serv . - walking home from work with a pocket knifeand DPD measured it to be too long .(Jt .Ex .2, p .11)

The October 10, 1995, Notice of Proposed Removal, charges the

grievant with "Failure to admit to convictions of offenses againstthe law . . .and making false statements in a government matter ."(Jt .Ex .2, p .1) Specifically, the Notice states that the grievant,

. .failed to mention arrests and a conviction in Vancouver,

Washington, and Portland, Oregon, in 1987 and 1988 ." (Jt .Ex .2,p .2) And, in addition to the two convictions shown on the 2591, a

check of the grievant's Dallas Police record shows arrests as

follow :

08-18-93 - Assault Causing Bodily injury12-08-93 - Burglary of a Building01-10-94 - Assault Causing Significant Bodily injury05-06-94 - Aggravated Assault with a Deadly Weapon

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On April 17 , 1995, the grievant was interviewed by Postal Inspector

Peter J. Donnelly , and confronted with the omissions on his 2591 .

During the interview , the grievant was evasive, denied having ever

been in the state of Washington and asserted that "he was not the

same George Lewis as on the FBI criminal record ." ( St .Ex ., p .2)

Thereafter , the grievant was discharged for "Failure to admit to

convictions . . . and making false statements in a government matter ."

(PS Brief, p .2)

V .

POSITIONS OF THE PARTIES

THE POSTAL SERVICE -- It is the position of the Postal Service

that termination of the grievant was for just cause and entirely

conforming to the collective bargaining agreement . According to

the Postal Service, " . . .this is a very simple case concerning an

employee that falsified his Application for Employment . . . ( and) who

has not been truthful." ( PS Brief, p . 2) The Postal Service

insists that the grievant ' s misrepresentation was deliberate and

willful ; that he failed to present a true picture of his past when

hired ; that the grievant does not show any remorse for his actions ;

that the grievant was a short - term employee ; and, that honesty is

a fundamental and universal obligation of all postal employees as

the matter of public trust is involved . Moreover , USPS Standards

of Conduct , ELM-666 .2, requires of all postal employees that they

be "honest , reliable , trustworthy , courteous , and of good character

and reputation ." Further, ELM- 665 .2 .m . is prohibitive of "fraud or

false statements in a government matter, " citing 18 U .S .C . 1001 .

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Finally, the Postal Service states that it "uniformly discharges

for falsification of employment applications ." (PS Brief, p .4)

The Postal Service asks "that the grievance be denied in its

entirety because the grievant's removal is warranted and necessary

to protect the interests of the Postal

customers ." ( PS Brief, p .4)

Service and their

THE UNION -- The position of the Union with respect to the

dispute is that the grievance should be sustained because the

grievant has furnished reasonable and satisfactory explanations for

having omitted the disputed information from his Application for

Employment . With respect to the Oregon "conviction" in 1987, the

Union contends that there was no jail time and that the grievant

successfully completed his probationary period without incident

and that the matter was closed on June 15, 1993 . (Jt .Ex .2, p .73)

The Union asserts in mitigation that the grievant acted in

accordance with advice from his lawyer that the Oregon matter did

not have to be reported and could not be held against him in any

circumstance . (Union Brief, p .3) With respect to the 1988

Washington warrant for the grievant's_ arrest, the Union insists

that the grievant was without knowledge thereof until being

informed by Inspector Donnelly . Thereafter, the grievant cleared

the matter simply by paying all court costs and the warrant was

dismissed . With respect to the grievant's arrest record with the

Dallas Police Department, the Union asserts that an arrest is not

a conviction and that the grievant was not obligated to report

those arrests on his Application for Employment . (Union Brief,

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p .4) The Union contends that the entire matter of the grievant's

removal is procedurally defective in that the first Notice of

Removal was not preceded by a Pre-disciplinary interview . The fact

that the Postal Service dropped the original removal action has

procedurally compromised its position such that further action is

violative of the grievant ' s due process rights . The Union asksthat the grievance be sustained , that the grievant be immediately

reinstated to his former employment with the Postal Service, that

he be made whole with respect to pay, seniority and other

contractually related benefits to include interest upon any award

of back pay .

VI .

DISCUSSION AND ANALYSISAlmost nine ( 9) months after being hired , a removal action

against the grievant was triggered by an Investigative Memorandum

dated May 8, 1995, wherein Inspector Donnelly detailed the results

of " . . .a National Crime Information Center ( NCIC ) warrant hit . . .onGeorge Lewis incident to his application for postal employment

."(Jt .Ex.2, p .9 ) Therein, Donnelly states that , "Lewis failed tomention arrests and a conviction in Vancouver , Washington, andPortland , Oregon, in 1987 and 1988 ." ( Jt .Ex .2, p .9 ) At Paragraph3 of his Memo , Donnelly states that the grievant " . . . was wanted bythe Vancouver , Washington Police . . .on a burglary warrant dated 5-18-88 . . ." At Paragraph 4 of his Memo , Donnelly states that thegrievant " . . . was arrested by the Portland , Oregon Police . . .on 9-23-87, for possession and delivery of cocaine . . . ( and) was sentenced to

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nine months in jail and five years probation . - .on April 14,1988 . . . ." Citing Arbitrator Caraway, the Postal Service submits

that,

An employee knowing that he or she has a criminalconviction on his or her record and fails to reveal anyinformation concerning the charge has, intentionally andwillfully, given the Postal Service false information .Termination of that employee is just and proper unlessextenuating circumstances exist . (PS Brief, p .2)

According to the Postal Service, "There are no extenuating

circumstances in this matter . . . The grievant is guilty as charged ."

(PS Brief, p .2) The Union counters that "The grievant has provided

a plausible explanation and supported it with persuasive evidence ."(Jt .Ex .2, p .34) But, the Postal Service appears not to have been

interested in the grievant's explanations . In her Step 2 decision

at Paragraph 19, Mary Helen Herrera, Labor Relations Specialist,

sums up the Postal position in this manner :

Failure to admit to convictions of offenses against thelaw and making false statements in a government manner(sic) are dishonest offenses for which the Agreementallows first offense discharge . Management did notviolate the Agreement by applying this penalty as thispenalty is evenhandedly applied. The NCIC and theNational Agency Check inquiries revealed criminalconvictions that the Grievant did not disclose .(Jt .Ex .2, p .39) (emphasis added)

Mare pointedly, "The Postal Service uniformly discharges for

falsification of employment applications ." (PS Brief, p .4) The

Union responds that, "Such an overly broad policy that evenhandedly

applies discharge to each case without benefit of consideration of

relevant fact and circumstances violates the obvious intent of

Article 16 .1 of the Agreement and has the inherent effect of

depriving the grievant of contractual due process ." (Jt .Ex .2

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p .33) There is merit to the Union ' s contentions .

According to the Postal service, the grievant has falsified

his Application for Employment by failure to disclose " convictions

of offenses against the law ." (Jt .Ex .2 , p .4) The grievant has

acknowledged the disputed omissions , but denies having willfully

and intentionally falsified his 2591 . The grievant states that he

had no knowledge of the outstanding warrant in the State of

Washington . And, the grievant states that he did not consider the

Oregon matter to be reportable as a conviction because he served no

jail time . According to the grievant , the term " conviction"

applies only to a person who has served jail time . As he served no

jail time for the Oregon matter, it was not reportable as a

conviction . Indeed, it appears that the Oregon matter was

satisfied by the grievant ' s satisfactory completion of a five (5)

year probationary period and the case was ordered closed on June

15, 1993 . ( Jt .Ex .2, p .73)

The Washington Court "dismissed with prejudice" the

outstanding warrant for the grievant's arrest on August 7, 1995 .

(Jt .Ex .2, p .78 ) It appears that once the grievant was informed on

April 17, 1995 , of the Washington warrant by Inspector Donnelly,

that he immediately took the necessary action of paying the

requisite court costs , " about five -hundred dollars ," and the

warrant was dismissed . It appears of record that once apprised of

the warrant , the grievant acted with diligence in reasonably and

honorably handling the Washington matter which concerned an old

domestic dispute of which he theretofore was without knowledge .

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The Postal Service should be pleased with the outcome instead of

continuing to use it as a club for his removal almost a year since

the grievant ' s employment . With respect to the grievant ' s omission

of the Oregon matter, further scrutiny is necessary .

According to the Postal Service, the Oregon matter is properly

characterized as a conviction which the grievant failed to report .

On the other hand, the grievant insists that his understanding of

the meaning of the term "conviction " applies to one who has, in

fact, been jailed. Consistent with such understanding, the

grievant properly reported on his 2591 as a conviction an incident

for which he served six (6 ) months jail time . ( Jt .Ex .2, p .11)

Since he was not jailed in the Oregon matter, the grievant insists

that he was not obligated to report it as a conviction on his

Application for Employment . Moreover , it appears that the grievant

was relying at least partially upon the advice of his lawyer .

(Jt .Ex .2, p .74 ) Seeking reconciliation of the parties' positions,

the arbitrator finds it necessary to brief the issue .

As the Postal Service grounds its case upon the view of

Arbitrator Caraway, perhaps that is a logical starting point for

the analysis . As noted previously , Arbitrator Caraway states that,

An employee knowing that he or she has a criminalconviction on his or her record and fails to reveal anyinformation concerning the charge has, intentionally andwillfully , given the Postal Service false information .Termination of that employee is just and proper unlessextenuating circumstances exist . ( PS Brief, p .2 ;emphasis added)

Implicit in the Caraway statement is that the employee has

knowledge that he has been convicted of a crime and that armed with

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such information, the employee deliberately chooses not to reveal

it . In a similar but unreported case, Arbitrator James P . Whyte

seems to concur with Arbitrator Caraway, above, both arbitrators

stating essentially what the writer perceives to be the position of

the Postal Service . Arbitrator Whyte observes that,

Although grievant may have preferred to believe that hehad not been convicted because he was not jailed orimprisoned for either offense . . ., it is well known thatsuspended sentences and probation commonly followconvictions, even on occasion, for very serious crimes .Grievant is charged with having this knowledge . Toreason otherwise would render meaningless one aspect ofthe maxim that all persons are presumed to know the law -- that ignorance of the law is no excuse .

Perceiving some ambiguity in the situation and not being ever so

certain as appear the Postal Service and Arbitrator Whyte as to the

meaning of the term "conviction," I proceeded to brief the issue .

According to Ballantine's Law Dictionary , 3rd ed ., Lawyers

Cooperative Publishing Company, 1969, p .270, the term "conviction"

is defined in pertinent part as :

An adjudication that a person is guilty of a crime basedupon a verdict or, in a proper case, the ascertainment ofguilt by a plea of guilty or nolo contendere . 21 Am J2dCrim L Sec .617 . Such is the primary and usual meaning ofthe term "conviction," but "it is possible that it may beused in such a connection and under such circumstances asto have a secondary or unusual meaning, which wouldinclude the final j udgment of the court ." United Statesv . Watkinds , (CC Or) 6 F .152, 158, 159 ; 39 Am J1st PardSec 38 . There is no conviction , within the meaning ofthe constitutional or statutory provisions disfranchisingone convicted of crime, unless there is something in thenature of a final judgment upon the verdict of guiltdeclared by the jury, suspension of sentence or grantingof probation is insufficient . Truchon v . Toomev , 116 CalApp 2d 736, 254 P .2d 638, 36 A .L .R .2d 1230 ; Anno : 36A .L .R .2d 1238 .

It appears that, "there is no conviction" without "a final

12

judgment . . . ; suspension of sentence . . . is insufficient ."

Ballantine's defines the term 'suspension of sentence' as the

postponement of the judgment of the court temporarily or

indefinitely, the conviction and the disabilities arising therefrom

remaining and become operative when judgment is rendered .

Ballantine's , Id. at 1247 . Read in conjunction, it appears that

there is no conviction where the sentence is suspended because

there has been no final judgment . The term "final judgment" is

defined to be any judicial decision upon a question of law or fact

which is not provisional and subject to change in the future by the

same tribunal . Balantine's , Id . at 473 . Here, it appears that the

grievant's nine (9) month jail sentence was suspended and that he

successfully completed the five (5) year probationary period .

There was no final judgment so long as the sentence was suspended

and the probationary period successfully completed . In fact, the

record reflects that the "CLOSING ORDER," dated June 15, 1993,

states that, "Probation in the above-captioned case has expired

without further action by this Court ." (Jt .Ex .2, p .73 ; emphasis

added) As there was no final judgment, the matter was at all

times provisional, thus precluding its characterization as a

"conviction ."

subject by the

(a)

on the

There seems to be little authority on the questionherein annotated, but the little there is seems tohold uniformly that disfranchisement does notfollow unless there is something in the nature of afinal judgment upon the verdict of guilt declaredby the jury ; there is therefore no "conviction" or

Consider the following summary annotation

American Law Reports , 2d :

Probation or suspended sentence .

13

one has not been " convicted ," within the meaning ofthe statutory provisions where sentence wassuspended or probation granted . (36 A .L .R .2d 1238 ;emphasis added)

But, there is more .

According to a leading legal encyclopedia, the word

"conviction" has two meanings : its ordinary or popular meaning,

which refers to a finding of guilt by plea or verdict, and its

legal or technical meaning, which refers to the final judgment

entered on plea or verdict of guilty . In'some legal contexts, the

word may appear in its popular sense, though in others the strict

sense is used and a verdict or plea of guilty is not a conviction

until a judgment has been entered-It has been suggested that the

popular meaning is adopted only where the rights of persons other

than the convict are involved, but where legal disabilities,

disqualifications, and forfeitures are to follow, the strict legaly N.

meaning is to be applied, absent some indication of a contrary

intent . (21A AmJur2d , Crim Law, Sec .1024, pps .568-9) . Herein,

application of a strict constructionist view appears to be

appropriate as the consequences of these circumstances concern

grave "disabilities, disqualifications, and forfeitures" attending

the grievant's act in completion of his Application for Employment,

PS Form 2591, on July 28, 1994 . Given these definitive

considerations, the grievant's position appears all the more

tenable and his actions all the more reasonable . Consider that

"the suspension of civil rights does not begin when the defendant

is convicted and sentenced, but only when he is actually imprisoned

under the sentence imposed ." Id . at 567 . Here, the grievant's job

14

is at stake, the loss of which is a severe "disability," the

ultimate "disqualification," a fatal economic "forfeiture,"

probably as important as any loss of his "civil rights ." Yet, the

Postal Service seems to feel comfortable with its own

interpretation and application of the term "conviction ." Review of

PS Form 2591 shows that no definition of the term is supplied

thereby leaving the applicant to his own resources . Under these

circumstances , the applicant must act upon his own knowledge and

information . Here, it appears reasonable that the grievant acted

truthfully and was entirely forthcoming in completing the

application as he did and in applying his own common-sense

interpretation to the term "conviction ."

The Postal Service faults "The grievant's misrepresentation,"

as "deliberate and willful ." (PS Brief, p .4) According to

Ballantine's Law Dictionary , supra, p . 1369, the term "willful" is

defined as follows :

A word of several meanings, the meaning in the particularcase often being influenced by the context . Spies v .United States , 317 U .S . 492, 63 S .Ct . 364, 87 L .Ed . 418 .Voluntary, as distinguished from accidental . 21 AmJ2dCrim L Sec .87 . Intentional or deliberate, yet notnecessarily with an evil purpose in mind . Fulton v .Wilmington Star Mining

Co ., (CA7 III) 133 F . 193 ; Kite v .Hamblen, 192 Tenn 643, 241 SW2d 601 . Stubborn,

obstinate, perverse . United States v . Murdock , 290 U .S .389 54 S .Ct . 223, 78 L .Ed . 381 . Inflexible . Refractory .Wick v . Gunn , 66 Okla 316, 169 P 1087, 4 A .L .R . 107 .Intentional and with a bad purpose . State v . Clifton ,152 NC 800, 67 SE 751 . Having a bad purpose, evilintent, or legal malice . Caldwell v . State , 55 Tex Crim164, 115 SW 597 .

On page 1370 , Ballantine ' s defines "willfully" with similar import,

thusly :

15

With a purpose or willingness to commit an act or to omitthe performance of an act, irrespective of intent toviolate the law or to injure another . Howe v . Martin , 23Okla 561, Hartzel v. United States , 322 U .S . 680, 64S .Ct . 1233, 88 L .Ed . 1534 . Knowingly, obstinately, andpersistently, but not necessarily maliciously . 34 AmJlstMal Sec . 2 . A technical word in an indictment orinformation . 27 Am Jlst indict 67 . Implying a certainstate of mind for the performance of an act proscribed bystatute . Screws v . United States , 325 U .S . 91, 65 S .Ct .1031, 89 LEd . 1495, 162 A .L .R . 1330 . Intentionally,deliberately, with a bad or evil purpose, contrary toknown duty . State ex rel .Fletcher v . Naumann , 2134 Iowa418, 239 NW 93, 81 AIR 483 .

This word when used in a criminal statute generallymeans an act done with a bad purpose, or withoutjustifiable excuse, or stubbornly, obstinately,perversely, and is also employed to characterize a thingdone without ground for believing it is lawful, orconduct marked by careless disregard whether or not onehas the right so to act . United States v . Murdock , 290U .S . 389, 54 S .Ct . 223, 78 L .Ed . 381 .

To vindicate the position of the Postal Service, one must

conclude that the grievant's act in completion of PS Form 2591 was

"done with a bad purpose, without justifiable excuse . . . without

ground for believing it is lawful," that the act was done

"intentionally, deliberately, with . . .evil purpose, contrary to

known duty ." Such is the position of the Postal Service, that the

grievant deliberately and knowingly committed a bad act purposely

to deceive the Postal Service, all without justification . That

does not appear to be at all the case . Left to his own devices and

experience , I find that the grievant's acts in completion of the PS

Form 2591 were reasonable and justifiable given the above

discussion and conclusion as to the meaning and application of the

term "conviction ." Whatever shortcomings may be attributable to

the grievant's completion of the 2591, they are entirely excusable .

16

The Postal Service faults the grievant for "not show(ing) any

remorse for his actions ." ( PS Brief, p .4) Perhaps, the grievant

has nothing to be remorseful about with respect to completion of

the 2591 . On the basis of this record, the grievant knew nothing

of the warrant for his arrest in Washington . How could he be

remorseful? On the record, the matter of the Oregon "conviction"

was not reportable and was otherwise excusable . Why should the

grievant be remorseful ? Indeed, there was nothing upon this record

requiring the grievant' s "remorse ." One, such as this grievant,

who has not been convicted may not feel remorse, and thus, may not

show remorse .

With respect to the grievant's behavior when initially

confronted by Inspector Donnelly concerning the outstanding warrant

for his arrest in the State of Washington, I am convinced that the

grievant was immediately surprised and shocked by Donnelly's

assertion and that the grievant believed himself "about to be

ariested on a warrant which I knew nothing about ." (Jt .Ex .2, p .67)

Indeed, it appears of record that the grievant "was scared and

thought (he) was going to jail ." Given the tenor of the situation

coupled with the grievant's lack of knowledge concerning the

warrant, his implausible behavior and completely negative response

in "denying everything" is understandable and excusable . Any

reasonable person would be upset and disagreeable in confronting a

surprise situation of imminent arrest with all attendant

ramifications for affecting one's work life . While generally

undesirable, the grievant's "street smart" first response of

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immediate and total denial represented a sort of rational behavior

on his part . Once calmed, the grievant was able to deal with the

warrant in an admirable manner as noted earlier . . And, once calmed,

the grievant offered a plausible excuse for not having revealed the

Oregon matter . But, by then, he was unfortunately overwhelmed by

the Postal Service's policy of "evenhanded" and "uniform" dismissal

for falsification of employment applications .

The Union complains that the grievant has been needlessly

charged twice for the same offense, the original charge having been

withdrawn by the Postal Service in recognition of the possible

fatal omission of a "a pre-disciplinary interview . . ." in

prosecution of the original Notice of Removal . (Union Brief, p .1)

The Union asserts that harmful error has resulted tending to

compromise the grievant's rights to due process . I find nothing

wrong with the de minimis corrective actions of the Postal Service

in seeking to put the best face on its case . If anything, it

appears that the Postal Service's corrective action in withdrawing

its procedurally defective Removal action was an effort to assure

the grievant of his due process rights, not an effort in denial of

such rights . The Postal Service cannot be faulted for such action .

Section 16 .1 of the Agreement provides that "No employee may

be disciplined or discharged except for just cause . . . ." Some

conceptualization of "just cause" is desirable . Arbitrators

articulate the concept of just cause in various forms and fashions .

One arbitrator reduces the concept simply as to Whether the

employee got a "fair shake?" (Arbitrator Belshaw, Hiram Walker &

18

Sons . Inc . , 75 LA 899, 900) Another arbitrator states that, "Just

cause . . . embodies the idea that the employee is entitled to

continued employment, provided he attends work regularly, obeys

work rules, performs at some reasonable level of quality and

quantity, and refrains from interfering with his employer's

business . . . ." (R. Abrams & D .R . Nolan, "Toward a Theory of 'Just

Cause' in Employee Discipline Cases," Duke L .J . 601 (1985) . Here,

the grievant's fair shake has been denied by a policy of "uniform

discharge " which is entirely too inflexible, dogmatic and

impervious to reason . Application of "just cause" requires

differential treatment and separate analysis of each individual

grievance in the interest of justice and fair play . It would be

difficult for any grievant to get a fair shake under circumstances,

as here, where he is disallowed the opportunity to influence the

outcome of his situation and his protestations go unheard . To hold

the grievant accountable for an arrest warrant of which he is

unaware is not fair, nor is it reasonable . To hold the grievant

strictly accountable in the face of plausible explanation, for

terminology interpretation different from one's own, without

thought and consideration, is not fair, nor is it reasonable . As

noted earlier, the grievant's common-sense approach to the meaning

of the term "conviction" seems entirely valid . With proper

consideration, these unfortunate circumstance may have been

avoided .

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VII .

A W A R D

FOR ALL THE REASONS SET FORTH AND DISCUSSED ABOVE, which it is

hoped that all will read with care , it is the Award of the

undersigned Arbitrator that the grievance be sustained . The Postal

Service is directed to remedy the grievance by immediate

reinstatement of the grievant to his former employment, and by

making the grievant whole with respect to all wages , benefits,

seniority and other contractual entitlements as may have been lost

or expended due to his wrongful termination . Such make whole

remedy includes complete restoration of any and all annual leave,

sick leave and pension benefits to which the grievant would have

been otherwise entitled but for his wrongful termination . The

Letter of Removal is to be purged from the grievant ' s record of

employment . The Postal Service is allowed to offset the back pay

award by any and all amounts earned by the grievant during his

period of termination and by the amount of all unemployment

payments received by the grievant during such period . Interest

shall be paid upon the back pay award as provided by the Agreement .

The arbitrator retains jurisdiction over this matter for

purposes of interpretation and implementation of this Award .

Ed W . Bankston, Arbitrator

Dated this 2nd dayof September, 1997, atNew Orleans, Louisiana

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