N. JUL1u 1996 REGULAR ARBITRATION PANEL. In the Matter of the Arbitration. between

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1 REGULAR ARBITRATION PANEL In the Matter of the Arbitration between UNITED STATES POSTAL SERVICE and NATIONAL ASSOCIATION OF LETTER CARRIERS X GRIEVANT : Edward J. Bianoski POST OFFICE : Edie~on, NJ N+W!J,, VAX rw t K CASE NO : A90N-4A-C / BEFORE : ROSE F. JACOBS, Arbitrator APPEARANCES : For the U.S. Postal Service : Yvonne Caprola, Labor Rela. Specialist Greg Tentonico, T.A. Robert M. LeVay, Postmaster Glenn Mahoney, O.I.C. Michael S. Caruso, Analyst Mike Zenuch, Sup.Cust.S For the Union : Places of Hearing : Charlie Heluk, Advocate Owen Seidenberg, Carrier Pam Berkery, Carrier Cynthia V. Fine, Carrier Edward J. Bianoski, Grievant 14 Home News Rowe, New Brunswick, N.J. and 21 Kilmer Road, Edison,NJ Dates of Hearing : March 22, 1996 and April 12, 1996 A N A R D Date of Award : See Attached May 15, 1996 N. JUL1u e.. Arbitrator :

2 Pursuant to the arbitration procedures set forth under the National Agreement between the UNITED STATES POSTAL SERVICE and the NATIONAL ASSOCIATION OF LETTER CARRIERS, (hereinafter referred to as the "Postal Service" and the "Union", respectively), the Undersigned was appointed Arbitrator to hear and decide the grievance of Edward J. Bianoski and to render a final and binding Award. The dispute being unresolved was submitted by the Union to arbitration for final determination. Hearings were held before the undersigned Arbitrator, at the offices of the Postal Service at the Edison Annex, 14 Home News Rowe, North Brunswick, NJ on March 22, 1996 and then at 21 Kilmer Road, Edison, New Jersey on April 12, The evidence adduced and the positions and arguments set forth at the hearing have been fully considered in preparation and issuance of this opinion and the accompanying Award. The hearings were not transcribed and the Record consists of the Arbitrator's personal notes, three (3) Joint, sixteen (16) Union, and four (4) Management exhibits. The evidence so submitted and the positions and arguments set forth at the hearing have been fully considered in preparation and issuance of this opinion and its accompanying Award. The Parties were afforded ample opportunity to present evidence and testimony germane to their positions on the following disputed issue. THE ISSUE Whether or not Supervisor John Mike Zenuch verbally and physically assaulted the Grievant Edward Bianoski? If so, what shall be the remedy? 2

3 BACKGROUND On September 9, 1994 Steward Edward Bianoski and Supervisor Mike Zenuch got into an altercation involving the status of an injured employee. The NALC says the Supervisor exploded into a rage and proceeded to verbally and physically assault Mr. Bianoski causing him to suffer physical and emotional pain, fear, stress, and public humiliation that lasted for days following the alleged assault. The Union asserts that Supervisor Zenuch poses a serious threat to the safety and personal well being of all craft employees as well as postal customers that he may come in contact with. The Union requests that the Supervisor be immediately removed from the position of Carrier Supervisor at 14 Home News Rowe and that he be retrained on how to deal with stress and other people and requests that he not be reinstated until such time that he demonstrates to the Union's satisfaction that he is no longer a threat to the safety and well being of craft employees. Management denied the grievance on the ground that the Union failed to show that Mr. Zenuch' s presence posed a threat to anyone's safety and personal well being ; that the aforementioned incident was isolated and was properly dealt with administratively. POSITIONS OF THE PARTIES The NALC : The United States promotes rights the world over. The United States Postal Service is part of the Federal Government of the United States. In Central NJ the U.S. Postal Service does not say what it means and lately does not mean what it says. There is a 3

4 virus in the Postal Service, an illness which is known as violence. Most of this violence is generated within the system itself. Many employees are unduly harassed, degraded, humiliated, embarrassed, and sometimes assaulted. Regrettably, employees of the Postal Service assault each other all too often. If a craft employee assaults another craft employee or a Supervisor or a customer, discipline is very swift and severe. However, if a craft employee is assaulted by a postal Supervisor, Management becomes blind and the Inspection Service becomes useless and feeble. The Steward/Grievant recounted the physical and verbal assault he suffered from Supervisor John Zenuch, and he has demonstrated how the system has failed again. He told about the investigation and the processing of the grievance in this case, and numerous witnesses have told what Management and the Inspection Service did not want to know, never mind correct. Regardless of the numerous statements of zero tolerance with respect to assaults in the workplace, it amounts to nothing more than rhetoric if the assaulting employee happens to be a Supervisor. Our system has broken down. Management refuses to correct this situation and employee frustration continues to grow. The Union strongly believes that this case under no circumstances can be passed conditions. off as being casual, happenstance, or normal working Memoranda on behavior and violence in the workplace that were agreed on at every level are concerned about the problem that the Postal Service has in general with the way employees are treated and the way employees treat each other. Frankly, this is 4

5 an illness in the Postal Service, and the illness has struck in this instance and needs to be remedied. Postal Inspector Panzera did not take any sworn statement from Postmaster Glenn Mahoney even though Mahoney says he was right there during the incident of the alleged verbal / physical assault. The Postmaster came across as a declared peacemaker. If this is true, why did the Inspector not take a sworn statement from the Postmaster? The Inspector did not do so nor did he take a sworn statement from Supervisor Caruso either who was a witness at the point of the confrontation. Again, this does not add up. The Postal Inspector did not follow up on Management ' s findings concerning a potentially violent situation. There were about eight Letter Carriers on the workroom floor who witnessed the assault and supplied the Union with written statements. Many of these Carriers came in to testify. However, some went on the road after waiting hours to testify including two Carriers who came in on their non-scheduled day and did not get paid. These witnesses stand on their statements -- they did not come in or write statements to support Mr. Zenuch. The Postal Inspector failed and/or refused to interview even one of the Letter Carriers. From the Union ' s perspective this falls into the double standard that exists regardless of the apparently strong language and memoranda about violence in the workplace. When alleged assaults are committed by Carriers, all too often Carriers are fired first and left to defend themselves against the charges. When it comes to postal Managers or Supervisors, they are defended and, as in this case, not even discouraged from this type 5

6 of behavior. They are being defended for an act where a'carrier would be suspended or removed. Very often incidents where Carriers commit alleged physical or verbal assaults are removed from their positions. Made part of this grievance are two incidents supplied concerning Letter Carriers' alleged assaults on one another. Both were from the local area, both alleged assaults were within the same time frame as this case. Both of these cases with the Carriers had very different results indeed. In both instances removal was the prompt response and penalty. As it turned out because of the Union's intervention neither removal was upheld. One Carrier did serve a two week suspension as a final outcome. The second Carrier's action was found to be without just cause and he suffered no penalty. On the record there was the frustration, anxiety, and emotional distress suffered by the removal -- however, the Union overturned that. in this instance there is a clear violation which was witnessed by numerous people and admitted by Zenuch, the alleged perpetrator, yet no corrective action in reality was taken or even pursued. Postmaster Mahoney was installation head at the time and he told us he witnessed the entire event and he did not give a written or sworn statement to the Inspection Service. Supervisor Mahoney stated he was on the workroom floor when the incident took place. The Union contends this action to be true. There are quite a few conflicts in this case. 1) Postmaster Mahoney stated that when the incident began he and Mary Lane glanced at each other. Mary Lane's work location was nowhere near 6

7 the incident. You cannot see from this location. When the Arbitrator reviews Mary's statement, she will notice that that statement does not involve Postmaster Mahoney and he could not possibly have seen the Carrier or Mary Lane. Vice President Owen Seidenberg testified that while sitting in the Union office with the door partially open, he heard the loud yelling and his natural response was to go to it. He saw Postmaster Mahoney come out of his office almost simultaneously. Again this poses a serious cloud that the Postmaster witnessed the entire event. Carrier Cindy Fine testified she was at her case and that she had a clear and unobstructed view of the entire scene. She testified that nothing or no one was in her field of vision. If Postmaster Mahoney was at the podium not only would he have seen Miss Fine he would have obstructed her view. Further, Postmaster Mahoney's testimony is without credibility for many reasons. He stated that the first he heard of the elbowing, the physical part of the assault, was on October 13 at the Step 2 hearing with the Union. This would have been over a month after the incident. When asked if he read the Investigative Memorandum, he said he did but that he only received a top copy without the statement of the witnesses. Yet, it was the Postmaster himself who gave those statements to the Union prior to October 13 in the Union's offer to investigate the circumstances. The saga continues as Postmaster Mahoney stated that the alleged verbal assault lasted no more than 20 seconds. Numerous Carriers by testimony or statement and witnesses to the event told 7

8 the Arbitrator at the hearing that the incident lasted over 5 minutes. Mr. Zenuch himself, the Supervisor who did the assaulting, admitted at the hearing that the verbal abuse he gave the Grievant lasted for at least several minutes. The Postmaster ordered Zenuch to stop and the Postmaster said Zenuch complied immediately. The problem with this is that there is no testimony or evidence that supports Postmaster Mahoney, including from Supervisor Zenuch himself. At the hearing Supervisor Zenuch admitted clearly that he did not comply with Mahoney's first few orders to stop. Postmaster Mahoney admitted the only reason he called the Inspector was because the Union wanted him to do so. This does not comply with procedure on how to handle alleged assaults. Postmaster Mahoney further stated that he handled this situation properly with proper corrective action. A few months earlier the appropriate action for another Carrier with circumstances nowhere as bizarre as here resulted in the Carrier being issued a Removal. Therefore, it is quite clear that Postmaster Mahoney's testimony is without credibility. But, there is more. Mahoney related that at no time was Mr. Zenuch's face near that of Ed Bianoski's. Not only does this conflict with the Grievant' s story, but this conflicts with the testimony of Zenuch himself. Zenuch testified that he was in Bianoski' s face. If a simple discussion was in fact held, it certainly did not correct the situation and the Union contends that the Postmaster's total testimony is without credibility and clearly indicates an 8

9 attempt to cover up for Supervisor Zenuch who admitted to the type of language he used. What we all recognize as accepted levels of shop talk, this is clearly not what happened that day. The language was being used in an assaulting fashion. He also gave the Arbitrator a graphic display of the language he used. Imagine that language over 5 minutes nose to nose spitting in the Grievant's face and elbowing on top of the verbal assault. This creates a situation of more than an assault -- it is a crazed situation. Zenuch admitted that the incident lasted at least several minutes, well beyond 20 seconds -- the entire time using profane language non stop. Also the Supervisor did admit that he did not obey orders to calm down right away but waited several minutes to comply. Most importantly, since the offense was admitted, the Union seeks the proper penalty. Supervisor Zenuch violated the proper behavior in the workplace clause, and he admits he certainly would not permit a craft employee to do what he did. Management claimed that part of the corrective action it used was to send Zenuch to classes. This is a scam to get the Arbitrator to believe that there was true corrective action. The classes referred to in Management Exhibit la/b are classes attended under normal conditions by Supervisors to enhance their portfolios. There is nothing in any of these classes that are immediately related to the situation here. Furthermore, Supervisor Zenuch had a problem attending these classes. If attended, the classes were in fact at best a network of paper work to paint a picture that Management did 9

10 things effectively and correctly. This is another attempt to create a cover up of the incident. Zenuch stated that he apologized. However, this apology was not sincere -- it was done on a token basis and for the record and certainly did not correct anything. This apology was made behind closed doors when the incident itself was witnessed on the workroom floor and led all the way into the office. This apology simply does not balance the scales. The Arbitrator should note that to this day Supervisor Zenuch verbally abuses people, and, some employees, especially females are afraid of him. Carrier Pam Berkery was also a victim of that assault. Her graphic description clearly indicates that she was the second recipient, although indirectly, of the assault and the apology was nothing more than a staged performance. The testimony presented at this hearing supports the original contention that Supervisor Zenuch continues to have attitude problems with employees using vulgar language to this date. Last but not least, customers have also had problems with Zenuch's attitude (See U.Exh.17). The Company's advocate spent quite a bit of time reviewing the past incidents concerning Carriers on the workroom floor that were not disciplined and never became grievances. It is the Union ' s contention that the main reason was they were not assaults. The relevance of those incidents to this case can only be imagined. If Management had a situation with a Carrier assault, the Carrier was fired with both Management and the Inspection Service doing a full investigation. 10

11 The Union believes that Mr. Zenuch violated the Parties' policy of violence in the workplace. Employees at every level should be treated at all times with dignity, respect, and fairness. Contrary to Management ' s position, the Union feels the Arbitrator has the authority to remedy this case. Those who do not treat others with dignity or respect or with unacceptable behavior will be removed. This remedy is definitely within the Arbitrator's authority. The Union is asking for nothing else than what Management asks for when a craft employee assaults someone. There cannot be a double standard. The Union therefore requests 1) that Mike Zenuch immediately be removed from his position as supervisor of the Carrier section and 2 ) that he is to be retrained on how to deal with people. The Postal service : Management has shown there was no violence in the workplace. There was a verbal altercation between two employees -- a Supervisor and a carrier. This verbal argument was not one-sided. The Grievant was just as aggressive in this argument as the Supervisor was. The Union wants it both ways. It wants to harass and incite arguments that continue to verbal altercation. It does not want anything to happen to its members, but it should happen to Management. The Carriers are loud at the cases and it is not unusual for them to enter into verbal shouting matches which are always resolved at the local level. This matter was resolved, but the Union did not like the way it was resolved. The Union would 11

12 like for supervisor Mike Zenuch to be removed from the Service for threatening an Employee with physical harm. Carrier Pam Berkery testified she had problems with every Supervisor and did not have a good working relationship with Zenuch. She admitted using vulgar language against Mike Zenuch. Pam testified she did not see any physical contact between the two. She did not file an EEO complaint or grieve as a result of being detained when she wanted to go home for a medical reason. There were several witnesses who went on the route on the day of the hearing instead of remaining to testify. The Carriers were told not to go on the route, but chose to go anyway. Therefore, the Carriers knew this kind of verbiage happens every day. They talk among themselves and there is bad language back and forth. How threatened could Cindy (Cynthia Berkery) have felt if she stood around to watch. She testified that things like that did not occur every day, but loud and vulgar language back and forth does. Bianoski was just as loud as Mr. Zenuch who apologized to the Grievant. The testimony was that he was threatened and did not want this to happen to anyone else. Ed Bianoski bid to the same area where Mike Zenuch was. Therefore, it is questionable how threatened he could have felt. The Postmaster asked Mr. Heluk of the Union not to put Zenuch and Bianoski together. The Steward said, "no." The Postmaster testified at the time that he witnessed the incident and there was no physical attack at any time and that he diffused the issue. He gave Zenuch training and a discussion and testified that it did not 12

13 happen again. Furthermore, Zenuch expressed remorse and he testified the whole matter was blown way out of proportion. There was nothing necessary left for the Postmaster to do. Zenuch admitted he was loud and cursed and that Bianoski egged him on. Zenuch apologized for his behavior and was remorseful and sincere in his apology and said it would not happen again. What the Union is asking the Arbitrator to do is not within any Article in the National Agreement. It wants the Arbitrator to penalize the Supervisor and not penalize Mr. Bianoski. There is zero tolerance to acts of violence in the work place. It takes two people to create discomfort. There is testimony that arguments break out in the annex all the time and there were incidents after the Zenuch and Bianoski incident which were diffused and nothing happened thereafter. Why the Union wants the Arbitrator to take Mr. Zenuch's job for things that happen every day in the facility is not clear. The Arbitrator should look at the facts, review the testimony, and decide that Mr. Mahoney took the appropriate action. Therefore, the grievance should be denied in full. DISCUSSION AND CONCLUSION The Union seeks corrective action against the Supervisor. It reiterates the Joint statement on violence and behavior in the workplace which the Central New Jersey District has prominently posted. The Union echoes that Under Article 14 of the National Agreement, the Postal Service has bargained "to provide safe working conditions in all present and future installations and to 13

14 develop a safe work force." The Union places the burden on Management to react properly and promptly to those instances of employee confrontations whether with supervision, fellow employees, or customers. The Union argues that Management is obliged to provide every employee, craft or supervisory, with safe working conditions by eliminating safety hazards ; that Article 16 provides Management with the right to discharge employees for just cause, and, in fact, provides for emergency procedures under Section 7 of the allegation involving a failure to observe safety rules and regulations or where the employee may be injurious to self or others. The Union asserts that "the Inspection Service and Postmaster Glenn Mahoney appear to have given each other a wink and a nod in shielding Supervisor Zenuch." Therefore, the Union argues its only remaining hope is to get justice in this case through the wisdom of the Arbitrator's pen. The Union presented numerous witnesses and witness statements that all concur that Supervisor Zenuch's actions were of an extremely threatening and violent nature and occurred on the workroom floor in full view of everyone present. Cynthia Fine testified that "No one heard Eddie (Bianoski). It was a big shock to hear words like that above level. It sounded really harsh. The obscenities didn't stop. I got nosey to see who he was yelling at and I peeped around. He was profound in his vulgarity. In the paper all this stuff is going on. It might be one you work with. He sounded very threatening. He had gotten loud lately -- but not like that. I saw no physical contact." Mr. Caruso heard and saw the yelling. He was in the same room and turned around but also claims he did not see a physical 14

15 assault. Carrier Owen Seidenberg did not witness the physical part of the assault either. However, he admits the language was extremely frightening and abusive and went on to say : "As soon as I went out in the hallway I could see Mike Zenuch doing the yelling and raving. In my presence the Carrier never raised his voice. Zenuch yelled continuously until I left the building... Discipline in prior similar cases cited by the Union involving other Carriers was swift and involved a Removal or Emergency Suspension. However, the Inspection Service in this case was not notified until the following Monday. In the past the Postmaster would always call the Inspection service when there were other altercations. Usually it was Zenuch who was the louder of the two." Carrier Pam Berkery was in the room and was scared. She did not like the atmosphere in the room and stated : "He yelled at me to go out. I could not -- they were in the doorway. Eddie backed up. Mike (Zenuch) kept stepping forward. When I got out they closed the door. I could still hear Mike screaming. He had spoken to me and others with vulgar language before. In my opinion, Mike gets upset very easily. I really did not want to be there -- it was way out of control. Mike's face was all red and he was right in Eddie's face. His spit fell on Eddie's face. They were face to face -- body to body. They may have touched. Mike will even use vulgar language in giving out work orders. He is vulgar and he has violated my trust." The Arbitrator is persuaded that the Union is correct in arguing that a "private apology from Zenuch to Bianoski for a very painful public humiliation and assault is not sufficient." The Union cites the National Level Joint Statement on Violence and Behavior in the Workplace and notes that the Parties state "there is no excuse for and will be no tolerance of harassment, intimidation, threats or bullying by anyone.... Those who do not treat others with dignity and respect will not be rewarded or promoted. Those whose unacceptable behavior continues will be 15

16 removed from their positions." ( U.Exh. # 3). On December 1, 1992 (U.Exh. # 5) the Postal Service issued a memorandum about altercations/assaults on postal premises for all who serve the organization and agreed that "we must firmly and unequivocally commit to do everything within our power to prevent incidents of work related violence. It is also the time to take action to show that we mean what we say." In addition, on August 1, 1995 (U. Exh.#4) Management issued a directive to all employees in the Central New Jersey District as follows : THERE WILL BE ZERO TOLERANCE OF ACTS OR THREATS OF VIOLENCE IN OUR WORKPLACE This included but is not limited to : Any act of physical violence Any actual, implied or veiled threat made seriously or in jest. Any type of vulgar language which could lead to hostile workplace. In order to protect the overwhelming majority of excellent employees, we are providing fair warning to that very, very small number of violence - inclined individuals that each and every act or threat of violence from this day forward will elicit an immediate and firm response that could, depending upon the severity of the incident, include removal from the Postal Service. The Postal Service makes a strong point in this case. If Mr. Bianoski was so upset by this incident, why did he not file a complaint? He did not do so nor did he take it upon himself to take the Supervisor to court. In fact, Mr. Bianoski clearly testified that he did not want Mr. Zenuch to lose his job as the Union does. He admitted that this incident was not repeated again, 16

17 and Mr. Zenuch stated openly that it would never happen again. Although management took a pledge to do what it takes to provide a safe environment, it argues that Mr. Zenuch's testimony was credible and sincere and he did not try to hide anything and the Postal Service made a judgment regarding appropriate corrective action and it took such action. Therefore, the Postal Service requests that the Arbitrator rule that Management has done everything possible under the circumstances to correct the problem. In the operation of the Postal Service, Management has a fixed obligation to control and direct the work force in a manner which will maintain an atmosphere between employer and employee which assures mutual respect toward the work force in general and employees engaged in legitimate Union business. What is especially disturbing here is that the assault was by a Supervisor on a craft employee. Supervisors should be held to an even higher standard and act as an example to the rank and file. The Joint Statement on Violence and Behavior in the Workplace is intended for Supervisors as well, and Supervisors should speak to fellow employees as they desire to be spoken to themselves, i.e. in a respectful and positive manner, as assaults do not necessarily involve only physical contact. Few occurrences are considered more fraught with danger and hazardous consequences than verbal and/or physical abuse. There is no question that Mr. Zenuch was out of control. He clearly admits that he was and has made a private apology. His lack of selfcontrol cannot be condoned and makes Mr. Zenuch's conduct clearly 17

18 ripe for discipline. The evidence indicates conclusively that no provocation by the Grievant preceded the attack, and I find no circumstances extenuating the actions of Mr. Zenuch. It is sufficient to sustain the Union if it is shown that the N.A.L.C. has provided sufficient evidence of the altercation. The Union has done so clearly and abundantly in this case, although I do not find sufficient proof that the assault was physical. The N.A.L.C. has indeed proven that Zenuch was loud, boisterous, and completely out of control and that such action cannot be tolerated in the work place and is worthy of reprimand. Mr. Zenuch is found guilty of unacceptable conduct by engaging in a screaming, yelling, and abusive fracas and there is no dispute that the obscenities were directed towards Mr. Bianoski. His behavior is indeed worthy of more than the slap on the wrist that the Postal Service has meted out in this instance. However, an action taken by the Arbitrator dismissing Mr. Zenuch the way the Union requests needs to be predicated on the right to do so under the Collective Bargaining Agreement, and, dismissal as a penalty in this case, has limited usefulness here. Therefore, even though the Arbitrator determines to sustain the grievance in this case, she concludes she has no authority under the Agreement to grant the remedy sought by the Union to remove Supervisor Zenuch. The most significant observation I can make is that one of the most important justifications for the separation of an employee from the job he is doing is the necessity to do so because he is a threat to the orderly operation of the work place. However, in 18

19 this instance, there is sufficient proof that the Supervisor's improper behavior has not been repeated since the Bianoski incident and it appears that he has learned a good lesson from the incident. Therefore, after careful consideration of all the facts and circumstances herein presented and in the interest of promoting positive labor relations and equal treatment for all employees for a fair balance of the rights and obligations under the requirements of the National Agreement and in order for Management to show it really seriously stands behind all the memoranda and statements it has issued on zero tolerance issue over the years, the Arbitrator makes the following A W A R D The Postal Service violated the National Agreement, Article 14 - Safety and Health, and Section of the M-39 Handbook by failing to maintain an atmosphere of mutual respect between the Supervisor Mike Zenuch and the Grievant Edward Bianoski on September 9, As an for a remedy Management is hereby directed (1) to cease and desist from such actions in the future ; (2) to re-evaluate whether Mr. Zenuch should continue to perform supervisory duties in the Carrier section ; (3) to instruct Mike Zenuch to draft and send to Ed Bianoski a formal letter of apology, witnessed in writing by the Postmaster, with a copy placed in the Supervisor's personnel file ; (4) to fully retrain the Supervisor in Management duties in accordance with the directives outlined in its handbooks and 19

20 manuals ; ( 5) to note in the Supervisor ' s employment file the recommendations of the Arbitrator that he be dealt with more harshly should similar conduct be repeated at any time in the future ; and, ( 6) to prominently post this Award and a copy of the letter of apology for 30 days on the bulletin board of the subject Post office unobstructed by any other material. IT IS SO ORDERED AND DIRECTED. Dated : New York, New York May 15, 1996 ROSE F. J BS Arbitrator STATE OF NEW YORK COUNTY OF NEW YO I, hereby affirm upon my oath as Arbitrator tha am the individual described herein who executed this instrumen which is my Award. 20