This is a summary of Regular Panel Arbitrator Michael E. Zobrak’s decision in case C06T-1C-D-09371888 regarding the Postal Service’s decision to discharge the grievant for allegedly filing a fraudulent OWCP claim. The arbitrator found the Grievant was removed for improper conduct in filing an OWCP claim and for providing inaccurate information related to a foot injury he suffered. The Grievant was a long-term employee with a discipline free record that claimed that he injured his foot while reporting to work. He claimed that the injury occurred while he was attempting to avoid a collision with another employee. The Postal Service relied on videos of the Grievant’s reporting for work and a reenactment of the incident. Both videos were found to be inconclusive and did not establish just cause for the Grievant’s removal. The arbitrator returned the grievant to employment and made him whole for all lost wages, seniority and benefits less any interim earnings and government benefits received.
The Union contended that this twenty-year employee was improperly charged with fraud. The Postal Service had failed to meet its burden of proof in this removal. In fact, the Postal Service did not present any proof supporting the allegations raised against the Grievant. The Union pointed out that one cannot see many details on the tape. It simply was not clear what the Grievant said about his turning the corner. The Union objects to the Special Agent lying to the Grievant, while charging the Grievant with lying. There was no prosecution for this alleged fraud. The camera could not record anything that occurred beyond the corner. This entire matter was a case of the Postal Service trying to make more out of the video than was actually there. What the Grievant said to Dreyer was simply a conflict in recollection. During the reenactment the Grievant made gestures pointing toward the area in front of the rest room and the badge reader. The Union requested that the grievance be sustained.
The arbitrator sustained the Union’s grievance; in so doing he stated:
The two videos were played in conjunction with the testimony of almost every witness. This arbitrator viewed the videos each time they were played during the course of the two-day hearing. The area covered by the videos is limited to the entrance hallway. As the Grievant approached the location where he turned left on to the adjacent hallway, the upper portion of his body was not fully seen. The same observation is made of the reenactment video. The inability to see the entire area where the hallways intersect minimizes the value of the videos. It is that observation that leads to the determination that management has not met its burden of proof in this case. No eyewitnesses to this incident were presented by either party. The initial video shows the Grievant walking on the right side of the entrance way and turning left on to the crossing hallway. Nothing else of the Grievant can be seen after that. If, as the Grievant claims, the near collision occurred some ten to fifteen feet into the hallway, it must be concluded that little is learned by the watching the Grievant enter the facility. The Postal Service, however, seeks to have considered the fact that traffic coming down toward the exit shows no sign of disruption. After a pause in the employee traffic only a male employee with a gait or limp is viewed coming down the entrance hallway. What cannot be clearly seen is the traffic at the intersection point. To that extent the initial video fails to provide any concrete proof as to what happened after the Grievant turned left. The Postal Service also relies on the reenactment video, also shot with the same mounted camera. There is no sound associated with the video so it cannot be determined what the Grievant and Dreyer are saying. The Postal Service maintains that the Grievant initially indicated that the incident occurred at the intersection point, not after he turned into the hallway. The Postal Service relies on hand gesture made by the Grievant as he explained to Dreyer what happened. After viewing the video on several occasions it must be concluded that the gestures, or shadows of gestures, are not sufficient to determine what was said by the Grievant during the reenactment. Again, it is found that the video does not provide sufficient evidence that the Grievant filed a false OWCP claim and lied to management concerning the incident.
The Postal Service’s reliance on the videos does not provide just cause for the Grievant’s removal. As stated above, having viewed the videos on several occasions during the two days of hearing, it must be found that they are inconclusive at best. Based on all of the foregoing, and for all the reasons set forth herein, it is found that the Postal Service has not met its burden to establish just cause for the Grievant’s removal. The Grievant is to be returned to employment and made whole for all lost wages, seniority and benefits less any interim earnings and government benefits received.
American Postal Workers Union, AFL-CIO