MSPB Affirms Firing Of Postal Worker With No Prior Discipline For Irregular Attendance

From PostalReporter reader: “Employees should choose their venue for discipline wisely. At MSPB removal is an appropriate penalty for minor offenses like irregular attendance [PR note: Postal Management uses the term “Irregular Attendance” when issuing discipline to employees] despite no prior discipline. That is not the case in the grievance-arbitration procedure due to Article 16.” – Don Cheney

Here is the case from The Merit Systems Protection Board:

The appellant has petitioned for review of an initial decision that affirmed his removal for unacceptable attendance. We GRANT the petition and REOPEN the appeal in order to consider the effect of an arbitration decision vacating the appellant’s prior 14-day suspension. For the reasons set forth below, we AFFIRM the initial decision AS MODIFIED by this Opinion and Order. The appellant’s removal is AFFIRMED.

On May 7, 2008, the agency proposed the appellant’s removal from his position as a Mail Handler, based on a charge of unacceptable attendance.  The agency cited 11 instances of unscheduled absences between January 16 and April 18, 2008.  The agency also noted that the appellant had received a 14-day suspension on August 29, 2007, for unacceptable attendance. On May 27, 2008, after the appellant had an opportunity to respond to the proposed removal, the agency issued a decision letter removing him effective June 10, 2008.

On May 30, 2008, the appellant filed a Board appeal challenging his removal. He requested a hearing. After holding the appellant’s requested hearing, the administrative judge issued an initial decision affirming the removal.  She found that the agency proved its charge, and that the penalty of removal was reasonable and promoted the efficiency of the service,. In her analysis of the penalty, the administrative judge referred to testimony from the deciding official that she had considered the appellant’s 14-day suspension in making her penalty determination. The administrative judge found that the deciding official’s consideration of the appellant’s prior disciplinary record was consistent with Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981).

The appellant filed a timely petition for review of the initial decision. On petition for review, he argues that he has new evidence. He has attached to his petition for review an arbitration decision issued on September 10, 2008.  In that decision, the arbitrator vacated the appellant’s 14-day suspension for unacceptable attendance dated August 29, 2007.The appellant also argues that the administrative judge erred by failing to admit into evidence a handwritten note from the appellant’s union Branch President indicating that the appellant had a live grievance concerning the suspension while this matter was pending. The appellant further contends that the agency violated the National Agreement with the union and that the arbitration decision rendered the removal action moot.

The agency has responded in opposition to the petition for review.  The agency argues that the arbitration decision was erroneous and that the suspension should not have been vacated. PFR File, Tab 3 at 12-13. The agency also argues that the fact that the suspension was vacated is not a basis for reversing the removal. Finally, the agency argues that the administrative judge properly excluded the handwritten note from the appellant’s union Branch President.

The agency’s response was filed the day after the filing deadline.  The agency moved for leave to file late on the grounds that the responsible attorney inadvertently “calendared the deadline for filing a response to the PFR . . . on the wrong date.”  The Board generally will not consider an untimely filing absent a showing of good cause. 5 C.F.R. § 1201.114(f). To establish good cause for an untimely filing, a party must show that he “exercised due diligence or ordinary prudence under the particular circumstances of the case.” Schroeder v. Office of Personnel Management, 106 M.S.P.R. 125, 127 (2007). A transposition error in calendaring a deadline does not constitute the exercise of due diligence or ordinary prudence. See, e.g., Roush v. Department of the Interior, 59 M.S.P.R. 113, 116 (1993) (“An error by the agency’s clerical staff does not constitute good cause.”); Lapedis v. Department of Health and Human Services, 47 M.S.P.R. 337, 340, aff’d, 949 F.2d 403 (1991) (Table) (“The mere fact that the agency miscalculated the time for filing its response . . . does not establish good cause for the untimely response.”); Gaff v. Department of Transportation, 45 M.S.P.R. 387, 390 n. 2 (1990) (“miscalculation of the filing deadline does not constitute good cause”); cf. Jaramillo v. Department of the Air Force, 106 M.S.P.R. 244, ¶¶ 5-8 (2007) (finding that the error of the appellant’s representative in recording a refiling deadline did not establish good cause for the delay in refiling, but waiving the deadline on other grounds in the interest of justice). We have therefore not considered the agency’s response in reaching our decision.
The appellant argues that the removal action is arbitrary in light of the arbitration decision vacating his earlier suspension. However, we find that the cancellation of the suspension does not warrant an outcome different from the one reached in the initial decision.

 We note that, at the time she issued the initial decision, the administrative judge was unaware that the arbitrator had vacated the appellant’s 14-day suspension. Therefore, the administrative judge was correct to apply Bolling to consider the appellant’s prior discipline. Under Bolling, the Board’s review of a prior disciplinary action is limited to determining whether that action is clearly erroneous, if the employee was informed of the action in writing, the action is a matter of record, and the employee was permitted to dispute the charges before a higher level of authority than the one that imposed the discipline. Bolling, 9 M.S.P.R. at 339-40. However, the Board has a policy of not considering prior discipline that has been overturned in grievance proceedings at the time of Board review. See U.S. Postal Service v. Gregory, 534 U.S. 1, 10 (2001) (citing Jones v. Department of the Air Force, 24 M.S.P.R. 429, 431 (1984)). We must therefore evaluate the agency’s penalty determination without consideration of the vacated 14-day suspension as prior discipline.

The arbitration decision was issued 2 days before the initial decision was issued. However, there is no indication in the record that either party notified the administrative judge of the existence of the arbitration decision. It is entirely possible that neither party had received the arbitration decision at the time the initial decision was issued.

To the extent that the appellant is arguing that the arbitration decision invalidates the entire removal action, we are not aware of any support for that position. The suspension that was the subject of the arbitration decision was not directly connected to the charge in this removal action. It is relevant only to the appropriate penalty. Nevertheless, we have reviewed the record and have found no error by the administrative judge in sustaining the charge.

The Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In her decision letter removing the appellant, the deciding official enumerated the Douglas factors she had considered in determining the appropriate penalty. Among the factors she cited were the nature of the charge, the appellant’s length of service, the consistency of the penalty with penalties given in similar circumstances, and the appellant’s potential for rehabilitation. We find that the deciding official considered the relevant Douglas factors and that the penalty of removal is within the tolerable limits of reasonableness for the charged misconduct, even in the absence of any prior discipline. With regard to the 14-day suspension, neither the proposal letter nor the decision letter cites the 14-day suspension as an aggravating factor in imposing the removal penalty. Nor does the hearing testimony of the deciding official indicate it was so considered. There is therefore no evidence that the agency impermissibly relied upon the 14-day suspension. See Jinks v. Department of Veterans Affairs, 106 M.S.P.R. 627, 636 (2007). On the other hand, the agency permissibly relied upon the suspension as evidence that the appellant had previously been warned about the conduct and was aware that additional violations would result in discipline. His continued unscheduled absences despite such notice justify his removal.

Because we have considered the reasonableness of the agency’s selected penalty without consideration of the appellant’s 14-day suspension, we need not address the appellant’s argument concerning the administrative judge’s decision to exclude a handwritten note referencing the existence of a grievance relating to that suspension.

We have also not considered the appellant’s argument on petition for review that the agency violated the National Agreement. Although the appellant alleged harmful error below, at the prehearing conference, he was unable to identify a rule, regulation or National Agreement provision that the agency allegedly violated. Therefore, the administrative judge did not include harmful error as an issue to be resolved in the summary of the prehearing conference, which stated that “additional issues are Fleming v. U.S. Postal Service, 30 M.S.P.R. 302, 308-10 (1986) (the Postal Service may properly remove an employee for using unscheduled leave when the leave was not requested in accordance with the agency’s leave-requesting procedures and when the employee was on clear notice that such unscheduled absences could result in discipline).

source: Jones vs USPS (PDF)

28 thoughts on “MSPB Affirms Firing Of Postal Worker With No Prior Discipline For Irregular Attendance

  1. First I will say that I was a mailhandler steward for many years. When I first read this article I was outraged at the decision. I have learned over the years to calm down and reread things later. I have done this.

    The most important of issues is that the appellant failed to let the Board now the contract. This was a simple case to win, yet it ended up a simpler case to loose. The Board has a history of more than 40 years considing postal service collective bargaining contracts as postal regulations and policy. When the union and management enter into an agreement, that is binding on both. See Reed v. Dept. of Transportation, 76MSPR 126, 135(1997) and Bross v. Dept. of Commerce 94 MSPR 662 (2003). So I agree with some of you that this guy may have had it coming, but at the same point this doens’t give a defunked management staff the right to violate a contract that is bound in stone. Discipline is progressive in nature, not punitive. If management sits back and allows 50 unexcused absences, guess what, it is at most a Letter of Warning that can be issued, period.

    All the appellant had to do was show where article 16 provides progression and simple have the removal tossed. There is not doubt the the post office will thump their chest and say, “look what we did” and of course try to cite this again and again. I was terminated from the postal service three years ago and have gone through this same ordeal. I won an EEOC decision about two months after the MSPB denied my intial decision. This EEOC ruling found the agency guilty of discrimination and overturned a two week suspension the agency used in my removal. My case in in US district court as a type this under the de nova clause. Yes you have it right, the agency is still contending that they can use a disciminatory action is my removal, go figure.

    On another note, when anyone reads the appeal, note under the analysis opinion last paragraph that this appellant didn’t provide any rule, regulation, contract cite,….NOTHING. It isn’t up to the Board to go hunting for information. I just hope this man appeals his case to the Appeals Court in Washington DC which he is entitled to do. If anyone knows this person, he needs to have his attorney/representative look at Marie Gregory vs. United States Postal Service where the Supreme Court unamamously ruled that Gregory was entitled to a new hearing when her Letter of Warning was overturned. The agency agreed with the Court. I cannot find anything of this case so I don’t know of the outcome.

  2. I have a problem at work. where as the foreign people don!t have to respect other people ears. what I!m saying isn!t there some kind of ethics violation for speaking there language around others that don!t speak it.I had my Sup. e-mail our Labor Relations about it.They responded by saying 1.P.O. doesn!t have the authority to make them speak english. 2. Some employee!s are paid extra for being bilingiual (ie: window clerks) 3. If the employee wants to know what they are saying learn there language. This piss me off because I!m a Vet and have over 33years of government experience this was never allowed. I thought this is the UNITED STATES POSTAL SERVICE Where everybody is on the same page.Can somebody tell me why I have to learn another language when I speak english.I!m born and raised in the United States. They are just visiting

  3. Visit the following link, there is 4 issues, the new amendmented bill, restoring FMLA laws to they way they were, stopping these plant closures, and contracting our mail out… Its very easy the emails are predrafted and sent to your senators or congressmen. Once you fill out one you can have it remember your info and you just click the link “Legislative Alerts and Updates”, or go back, and move onto the next issue. Its will already be filled in. EVERYONE OF THESE BILLS need all of our support. Tell everyone at work and forward it to friends and family. This is very important for all of us. Its time to Unite before we are all on the unemployeement line

    Its time for a new post master general. Potter is running the PO into the ground. Does anyone know when his term is up or how they go about getting a new one??? He has overstayed his welcome

  4. Everyone blames management for their own actions which is absurd. The PO is a business and should be run like one trying to serve it’s customers to stay in business. It needs people dedicated to coming to work as scheduled and expect them to work and be productive. Eleven unscheduled absences in 3 months, now who is going to do the job this person is being paid to do? If this were the private sector YES he would be terminated.

  5. sick leave is a benefit that was negociated but mgt. doesn’t want you to use it or buy back even a percentage. oh but watch them use it against you in the public arena during contract negociations to show how you are over paid. welcome to the usps, the only job that will try to fire you as soon as they hire you!

  6. This whole nonsense of the sick leave benefit which is contractually negotiated is a fraud and sham. After 32 years of witnessing the dog and pony show, only an idiot can`t see through the hoax. The union needs the sick leave plan to be a constant source of contention to justify endless hours of Union time being dedicated to grieviences based on unscheduled absences aka sick leave. Management (Labor Relations) need the sick leave benefit to be left as is so that it justifies their endless hours of going over step 2 and step 3 grieviences to keep their jobs. Who`s playing the role of the (host) and who`s the (parasite)?

  7. We don’t need unions. They is socialist. And we shouldent have sick leaf either becawse that is socialism two.

  8. Ugh, supervisor’s who create sentences like that… are one of the biggest problems at the PO. In other words, you don’t seem to be able to write at a junior high school level!

    Yes, employees who don’t come to work, and have a history of not coming to work should certainly be looked at for dismissal. If there is no good reason, please show them the door!

    However, mismanagement of the Postal Service has allowed this to go on for decades! Useless employees would not be employed, if their inept supervisors did their jobs!

    But, as anyone knows who has been employed for longer than a month at the PO… a large majority of supervisors, managers, postmasters are in their jobs because of whom they know, and certainly not because of what they know!

    When I started, those jobs went to some of the worst employees on the rolls. But, because they drank with the right people, or went to the track with the right people… Or indeed had sex with the right people, they got the job. I’m sorry to say that not much has changed in my twenty years.

  9. carolina cutie, file the grievance. Let the Union do their job. It is unfortunate that when one is really sick, they are required to have “acceptable attendance”. Please trust your Union to do right by you. That is what they are paid to do.

  10. Not everyone is blessed with perfect health. Why should someone lose their job if they really are sick and unable to work? Isn’t that the reason why USPS and the union included sick leave as a provision of our jointly negotiated contract? Besides, sick leave is EARNED by the employee not just given to them as a gift.

  11. Since Jan 1, I have missed two day with the flu-went to the doctor on second day, one day with allergies, and left early three different days for doctors visits. I have been told I will receive a letter of warning for excessive absences. If I do any suggestions on my response other than filing a step one grievance.

  12. Supervisor, I agree 100 percent that they should start cleaning up the PO. In sports, when the team is out of control, they fire the coach. Since you’re a supervisor, and might need this explained a little, YOU ARE THE COACH !!!. This guy would have either come to work or been taken care of long before the 11 occurrences had taken place. I love it when management always blames the employees or the union for the problems, when almost none of them are even remotely qualified to supervise a brownie troop, much less a multi billion dollar operation like the USPS. I do apologize in advace to the 10 percent or so of the managers that are qualified, but it’s the other 90 percent that make you look the fool.

  13. If you don`t go to work, why get mad when you get fired ? The mentality of many idiots in the P.O. is that they feel they are doing the P.O. a favor… So to the idiots out there its the other way around, the P.O. is doing you a favor for keeping an idiot like you around that would not survive in the real world.

  14. If the grievant worked anywhere else, he would have been fired long time ago. Why do people think they keep getting by with the PO? It is time to clean up the offices and if somebody don’t want to come to work, than get another job.
    I hope we see more of this in the future, people being let go because they don’t show up to work.

  15. The fact that this person had 11 occurrences is managements fault for not doing their job. If management did their job this person would have been on legitmate discipline and not some horseshit from incompetent managers. The fact that one can be removed by the idiots now administering MSPB decisions at the first step of the discipline process should be of concern to each and every person employeed by the USPS. The times as they are and the fact that management is looking to get rid of as many employees as they can…do you want to leave your fate to anyone that wants to screw with you just to see if it sticks? I agree he should have let the grievance process work for him but to be fired at the initial level of discipline due to managements incompetence is absurd.

  16. Better pray the PO doesn’t file for bankrupcy. We are not considered a govt agency. That will null and void all contracts and eliminate collective bargaining. Then slugs like this guy can be fired without going through all the paperwork of grievances.

  17. This is a sad state regarding the discipline process. With my own experience with trying to get FMLA protection (practically impossible with all of the nitpicking done by the FMLA coordinators and certain doctors)I can clearly see that some medical problems can and do prevent one from going to work within the acceptable guidelines of the USPS attendance cops. Then the attack from the USPS cops will exacerbate some medical issues and make it even more difficult to have so called good attendance. Why is it that many members of management can use 4,5,or 6 months of consecutive sick leave and never have to submit any documentation whatsoever ? Yes there may be some craft employees using too much sick leave but why aren’t the rules applied the same for management ?

  18. 11 unscheduled absences in 3 months!
    You can not defend against stupid!
    Some members are their own worst enemy!

  19. FYI, the union is not obligated to represent members in MSPB. This is to deter the possibility of a lawsuit against the organization. I represented a friend once in a case where he had be overpaid $8,377. due to a miscalculation of his retirement benefits. I won, but won’t go through the process again.

  20. Employees are given the opportunity to file a grievance and/or put the decision before the Merit System Protection Board. At one point, the employee is forced to either continue in one venue or the other, if he/she chooses MSPB, he/she is compelled to drop the grievance and stand by the decision of the board. You are not given the opportunity to have two bites of the apple, unfortunately this sounds like a case where the Union would have prevailed.

  21. I’m a union brother and have been most of my 36 years, but scab or no scab should not be what we are about. everyone deserves a 100% percent from their shop stewards, no less no more., that how you get these people to join the union, so if that was an issue, then were as bad as they are…

  22. If employees came to work like they are paid to do, they would not have to worry about letters of warnings, suspensions or appeals.

  23. Since discipline must be progressive in nature, i.e., Letter of Warning, 7 Day Suspension, 14 Day Suspension, Removal, vacating the earlier 14 Day suspension would mean the Removal would have skipped the progressive action and should at least have been reduced to a 14 Day Suspension.

  24. If he was not a union member, the union had no obligation to educate him on his better option. Most scabs already know it all.

  25. There is a much unknown information about the appellant, such as: why did the appellant abandon the grievance arbitration system, was the appellant a union member, surely the union knew that the appellant’s chances were better by staying with the grievance arbitration.

  26. Too bad the union was not able to grieve in such a manner as to break the chain of discipline.

    There is a lot that is not explained about the grievant’s behaviour and the circumstances that brought him tp this point.

    The grievance procedure is the best way to deal with discipline as it puts the burden of proof upon management where as a other classes of grievances have to be proved by the grieving party.

    Management would not have gotten a second bite of the apple if the mailhandler had stayed within the grievance discipline procedure as the “Defense To Discipline” manual in the union office and union computer and union web site outlines and teaches.

    I can only throw up my hands!!!

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