Why Management Cannot Terminate Employment Unjustly

¶ … Discharge for Off-Duty Conduct The rules regarding discharge for off-duty conduct are as stated: Under 661.53, employees are prohibited from engaging in "unacceptable conduct" such as "criminal, dishonest, notoriously disgraceful or immoral conduct, or other conduct prejudicial to the Postal Service" and the conviction "maybe be grounds for disciplinary action" (Holley 626). These rules are important for providing the context for the dismissal of Lee by the Postal Service management.

Whether or not his criminal conduct could be deemed prejudicial to the Postal Service is a matter of dispute, according to the Union. Thus, the Union emphasizes the "nexus" as used in labor arbitration. This term means the focus or central point of the activity as well as its relation to the Postal Service. The Union claims that the nexus was not related to the Postal Service and therefore did not impact or fall within the jurisdiction of the rules.

This is also known as the "nexus principle" in labor arbitration (Secunda). The nexus principle is important here because it plays a significant role in how the issue should be considered: the context of whether or not Lee engaged in mail fraud is discussed by the Union, which shows that Lee did not engage in this nor was he charged with this -- that it was a false charge leveled by the Postal Service, which essentially tainted the investigation from the beginning.

Following the logic of the nexus principle, the issue of equal treatment arises and the Union plays this card rather well by citing six different cases in which Postal Service workers were either charged or convicted of crimes far more heinous than Mr. Lee's, which in all likelihood could have been accidental even though he pled guilty (sometimes pleading guilty is a better and less costly alternative to fighting for one's innocence).

The equal treatment issue is important because it illustrates that the Postal Service did not discharge other employees who were connected to criminal activity because it was found that the activity was not connected to Postal Service activity or prejudicial to the Postal Service. These cases set a precedent, which is clear: Lee's grievance should have been upheld in the light of these preceding cases.

The rule concerning the employer's submission of the unemployment compensation claim in the labor arbitration proceedings is that the employee must not be engaged in any activity that is prejudicial to the Postal Service and it is alleged that this is what Lee engages in -- although the Union points out that the management does not prove this charge and in fact levels a false claim. So the fact that Lee is denied unemployment compensation is another factor in the arbitration that must be considered.

The amount of weight that should be given to Lee's job performance after his conviction should be equal to that given to his performance prior conviction, since his conviction is not related to the job or the performance of the job. Essentially, Lee is an employee against him no disciplinary action has ever been brought in his 13 years of service, neither before nor after his conviction -- until his termination.

Thus, if anything is to be considered it should be that Lee has indeed been a suitable employee for the Postal Service. The arbitrator should consider the union's submission of evidence of the continued employment of Ms. Edwards for a number of reasons. First, the information regarding Ms. Edward's continued employment was not made known to the union until proceedings were already underway. The management protested that the union had plenty of time prior to the proceedings to draw comparison between Edwards and Lee but failed to do so.

This is not true, as the example of Edwards being allowed to continue her employment was evidence that came after the fact and too close to the proceedings for its proper investigation to be conducted. Thus, this is a piece of faulty reasoning and misleading or "bad faith" on the part of management. It is just another example of management's mishandling of this entire case, from the false charge of mail fraud to arguments such as this. The fact is that Ms.

Edwards' continued employment provides ample evidence of Lee's unfair dismissal. The fact that the union is able to cite six other incidents in which arbitrators sided with employees who were also guilty or charged with some crime shows that the case against Lee has been flagrant, and obstinately mishandled by management.

For that reason, much weight should be given to the previous arbitrators' decisions regarding these six cases, as they have set precedence by which future arbitrators may follow and they have largely already ruled on situations as are being presented in the case of Mr. Lee, so there is plenty of guidance in terms of context and real-life situations. Therefore, the arbitrator will decide in favor of Mr.

Lee because the proof, as the union shows, is on the burden of the Postal Service to show that Lee's off-duty conduct was prejudicial to the Postal Service, and indeed the Postal Service has not provided this proof. On the contrary, the Postal Service has done the opposite: it has made false allegations against Mr.

Lee in an attempt to disparage him and his conduct and to show that he is deserving of being fired for his conviction, the nexus of which is unrelated to the Postal Service, in spite of the Postal Service's claim that any crime against the U.S. government is a crime against the Postal Service (Holley 627).

For this reason, there is no "just cause" for Lee's termination, which is needed for that management to release the employee (Mayhew): in fact, the Postal Service appears to have been hard pressed to invent reasons for why Lee's termination was justified -- which is evident as the union points out. Lee was not charged with mail fraud by the U.S.

government but by the Postal Service: but the Postal Service was not in any position to deliver such a charge, therefore the fact that this charge was used at all to color the hearings and the proceedings as well as the investigation and the appeals only serves to underscore the fact that the Postal Service was negligent.