Arbitrator Awards Clerk $50,000 for Postal Inspectors Misconduct
The following are excerpts from an August 23, 2007 arbitration award [via 21cpw.com] that documents abuse of a clerk by postal inspectors in Clifton, AZ. The Union grieved under Article 2 and 17 of the National Agreement and got $50,000.00 in damages. APWU was represented by Steve Zamanakos, National Business Agent, Denver Region.
Award: The grievance is properly before me under the provisions of Art. 2.3. The Inspectors violated Art. 2.1 & Postal Bulletin 21826: their conduct on May 27, 1999 created a hostile work environment for the Grievant. They also violated Art. 17.3, the MOU, a Step 4 Decision, & Inspection Service protocols by denying the Grievant representation. Dent violated ELM provisions when he interjected himself into the CA-1 process. The Agency failed to adequately supervise the Inspectors, failed to cooperate with the Union during the grievance process and failed to investigate the Grievant’s sexual harassment claim in violation of Postal Bulletin 21826. The grievance is sustained and damages awarded.
Between March 29, 1999 and May 14, 1999, four of the daily deposits from the Clifton (AZ) Station allegedly arrived in Phoenix with checks, but without cash. Beverly Shupe, Clifton Postmaster, contacted Postal Inspector James Reid for assistance to clear up the question of the missing cash.
On May 26, 1999 Reid and Postal Inspector Richard Dent visited the Clifton oflice and spoke to Shupe. It was determined that the Grievant prepared the first three deposits and verified the fourth. The Grievant was not at work on the 26th…
Shupe testified she told the Grievant that the Inspectors were going to take her, the Grievant, to the Morenci Motel (about 7 miles from Clifton) to question her about the missing cash.
According to the Grievant’s statement, Reid said “let’s drive towards Safford and talk “‘ The Grievant consented. Rather than going to the Morenci Motel, the Inspectors drove the Grievant to a Rarnada Inn in Safford, Arizona about 45 miles from Clifton. A third Postal Inspector, Roy Everetz from California was waiting in an adjoining guestroom at the Ramada for Reid, Dent and the Grievant. At some point during the questioning, one of the Postal Inspectors asked the Grievant if she would agree to take a polygraph exam. The Grievant said that she had “no problem taking the test but had been advised not to take the test”. Everetz had the Grievant sign a consent form that the exam was voIuntary. After administering the polygraph, Everetz allegedly told the Grievant that “he was 99.5% sure I stole that money”. The Grievant was then fingerprinted and photographed by the Postal Inspectors who then drove the Grievant back to the Clifton Post Ofice arriving at approximately 2: 15 p.m., 6 1/2 hours later.
A grievance was filed timely by the Union alleging that the Grievant was subjected to a hostile work environment by the Service and the Postal Inspectors on May 27, 1999 and that Title VII of the Civil Rights Act of 1964, Article 2.1 of the Collective Bargaining Agreement and OWCP regulations were all violated.
The Grievant contacted the Union June 2, 1999 on the advice of Shupe and prepared a statement of events of May 27. The Grievant told Inspectors that she “would feel better if I spoke to my postmaster or the postmaster representative Sue Coburn” to get guidance. According to the protocols outlined by Felton, everything should have stopped right then. The Inspectors refused her request. The Grievant wrote: “They said that would be fine, but was not necessary.” The Grievant then stated that she “wanted to call my husband, because a lot of time had passed and he did not even know I was in Safford ” That request was also denied by the Inspectors who said “that was fine, but Beverly knew where I was.” The Inspectors lied and talked the Grievant out of representation and her Weingarten rights.
The Inspectors stopped the Grievant from leaving the motel. According to Felton that would not be proper. She was photographed, both profile and straight on which according to her statement made her feel sick to her stomach. She was also told that all the evidence in the polygraph pointed to her and it was suggested she not talk to anyone about it.
According to Felton, Postal Inspectors do not talk to anyone who is not involved in the investigation. When Dent talked to Yvonne in Injury Compensation about the Grievant’s CA-1 claim he revealed sensitive information to get himself out of a jam. Injury Compensation should not have received any information from him regarding the investigation and his opinion that the Grievant was guilty of a crime. Injury Compensation claims have a life of their own. It is designed to be an independent, not an adversarial process that should not be interfered with by Dent who had no right to contact Injury Compensation.
According to Shupe’s written statement of June 4, 1999 Yvonne said “OWCP is really going to be paying on this one.” Shupe further testified that one hour later Yvonne called her back and told her to change the Grievant’s timecard to sick leave or annual leave and that she could not process it as continuation of pay because the Grievant might be guilty and it might be hard to get the money back. Yvonne told Shupe that she received this instruction from her supervisor. Dent also told Shupe on June 8~ that he talked to Yvonne.
Loosely defined, kidnapping is the act of abduction or carrying off a person by force or fraud. The Grievant consented to ride around with Dent and Reid to answer their questions about the missing Postal funds. Neither Reid nor Dent was forthright with the Grievant or Shupe. It is apparent that their intent all along was to take the Grievant to Safford for a polygraph examination. It was a deceit perpetrated by the Inspectors who were acting within the course and scope of their employment to gain an unfair advantage over the Grievant by taking her 45 miles away from her work location to a place where there was no public transportation back to Clifton. While a kidnapping accusation is better left to the criminal justice system to determine, the acts of the Inspectors shock the conscience from an industrial jurisprudence perspective. An employee does not waive his or her rights under a collective bargaining agreement by submitting to such conduct.
Inspectors were not forthright with Shupe or the Grievant, both of whom should have been told the interview/interrogation was going to be conducted at the Ramada Inn and not at the Morenci. The Inspection Service protocol requires the employee know up front where the interview will take place. A motel or hotel is appropriate only when there are no other suitable accon~modations. There was a police station in both Clifton and Safford. There is no evidence that either one of those two locations or the Safford postal facility was considered for the interview/interrogation and polygraph examination. During the time that the Grievant was undergoing multiple polygraph examinations the process was being monitored by Reid and/or Dent in an adjoining motel room. Inspection Service protocol indicates that when an examiner administers a polygraph to an employee of the opposite sex, a witness should be present to monitor the
examination if it is not videotaped and/or audiotape recorded.
The USPS claims that there was no Investigative Memorandum prepared by any of the three Inspectors because the investigation was ongoing. There was no evidence to indicate that Everetz, Dent or Reid was involved in any “continuing” investigation concerning the Clifton office. Assuming arguendo that they were involved in a continuing investigation, it surely must have concluded at some point in the eight years prior to the Hearing of this grievance. Investigative Memorandums I have reviewed in the past are very detailed and quite thorough. To contend that no report of any kind was prepared strains credulity.
While reluctant to fashion a remedy which provides money for work not done, there are times when an award of damages is the only appropriate remedy. This is one. The improper conduct of the Inspectors in this case cannot simply be reversed ipso facto by their retirement.” Nor can the conduct be reversed by a claim that they were acting appropriately and in accordance with established Inspection Service protocols. I find that they were not. To not award monetary damages against them individually and against the Agency would create a dangerous precedent that misconduct by Postal Inspectors and violations of the collective bargaining agreement could be nullified simply by retirement or hture adherence to proper protocols. Retirement does not shield them from the consequences of their actions on May 27, 1999 and the actions of Dent subsequent thereto.