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Trenton Metro Area Local

American Postal Workers Union

AFL-CIO

 

Maintenance Issues

Gary Kloepfer
Assistance Maintenance Craft Director



Arbitration Update, A Service of the Industrial Relations Department, Greg Bell, Director

 

REGULAR ARBITRATION PANEL

 

Case Number:                        H94T-1H-C 97003915

Arbitrator:                        Jim K. Duncan

For the Union:                        Charlie Robbins, NBA

 Award Summary: 

The grievance is sustained. The Postal Service failed to abide by the August 3, 1995 Sign Off Agreement by failing to inform the Union of any subcontracting work prior to awarding any contract. The remedy awarded is based upon the Union’s testimony as to the number of labor hours which would have taken to complete the project which equates to $3,840.00.

ISSUE 

Did the Postal Service violate Article 32 of the National Agreement and/or the Local Agreement when it subcontracted air conditioning work at the Lake Mary, Florida Post Office? If so, what is the proper remedy?

BACKGROUND 

This grievance arose as a result of the Postal Service subcontracting air conditioning work at the Lake Mary, Florida Post Office. 

CONTENTIONS 

The Union Position 

The Union contends that the Postal Service violated Article 32 of the National Agreement when it subcontracted out air conditioning work at the Lake Mary, Florida Postal Facility. The Union further contends that employees were available who had the expertise to do the job at less cost by using Postal Employees. The Union further contends that the Postal Service violated a prior Local Agreement which required Management to inform the Local prior to awarding any contract. 

The Postal Service Position 

The Postal Service contends that the installation of an air conditioning unit on the roof of the Post Office was a major construction project and that the Postal Service did not have the equipment necessary to provide a safe installation. The Postal Service further contends that the Union was notified prior to the awarding of the contract in compliance with the Local Agreement. 

DISCUSSION AND OPINION 

The advocates are to be commended for their briefs and excellent arguments submitted in this matter. 

The case presents two issues to be resolved. The first issue to be resolved is whether or not Management complied with August 3, 1995, a sign off agreement which resolved a prior arbitration case. That agreement is set forth as follows: 

The below signed parties agreed to resolve Case No: 31-95-027 with the following agreement.

 

Plant Maintenance Management agrees to abide by the language in Article 32 of the National Agreement. Further, Management agrees that, in the event consideration is given to subcontracting out any work, the APWU Local will be informed prior to awarding any contract. 

The Maintenance Manager testified that the above agreement was made with the Local Union President resolving a prior grievance. Under the agreement the Maintenance Manager was to notify the Local Union prior to subcontracting any work. He further testified that written notification was not required and his only obligation was to notify the Local before awarding the contract. The following record was taken from transcript in this case as follows: 

Question:  Did you do that in this case?

 

Answer:   Yes, I did.

 

Question: Are you required to give written notification under the terms of the memo?

 

Answer:  My obligation was to notify them. 

In reviewing the written record of this cause which is the Joint 2, the only documentation provided is contained on Page 20 which is set forth as follows: 

Facility Project 7/17/96

 

Install NC Unit on top of PSDS site

Contracting versus utilization of in-house labor

 

The scope of work required for this project exceeds the capability of the Mid Florida Plant Maintenance Department.

 

The necessary tools, test equipment, lift equipment, etc., are not available as well as sufficient manpower to accomplish this project. 

The remaining written documentation concerning this particular issue was the document contained on Page 9 of the Joint 2 entitled, “Construction Contract, dated 6/6/96” which set forth the costs of the project submitted by the contractor, Colonial Construction. It is notable that there was no evidence that this document or any other cost comparison document was provided to the Union by the Postal Service prior to the letting of the contract. There were some allegations made by the Postal Service that a cost comparison was provided to the Union, but on examination by the Arbitrator the Maintenance Manager testified that no cost comparison was ever made. 

The above document dated June 6, 1996 is the only document relating to the subcontracting of work which is contained in the file and is the only document which was submitted as evidence pertaining to same.

The only other relevant evidence presented was the testimony of the Maintenance Manager regarding his notification to the Union on June 17th, 1996, one day prior to the work started on the construction which was testified to as June 18th, 1996. 

The Maintenance Manager testified on cross-examination that the contractor submitted this work order estimate on June 6, 1996, which is contained as Joint 2 Exhibit, Page 9. There was no evidence indicating that this document was provided to the Union. The document at the very least indicates that the Postal Service was considering subcontracting as early as June 6, 1996. 

There was further testimony from the Maintenance Manager that the “Contract/Construction’ was let end that the construction began on July 18, 1996. This was supported by Joint 2 Exhibit - Pages 21 and 22. The only evidence presented was that this document may have been provided to the Union on July 17, 2003, which was the day before construction began. There is no evidence as to when Management communicated to the Union other than Managements witness who stated he notified the Union on July 17, 1996. 

It is also noteworthy that in the Step 2 Grievance Summary, Item 15 (Management’s position), it is stated that “the APWU was notified in the form of the written costs comparison prior to any work being awarded.” There is no evidence to support this allegation and indeed, as mentioned above, when the Maintenance Manager was questioned on whether or not a cost comparison was done, he testified that there was none done. 

in reviewing the above facts against the 1996 resolve it is noted that there was no distinction made in the resolve between “Maintenance Service Contracts and Construction Contracts,” as advanced by the Postal Service. The resolve only speaks to “subcontracting out any work.” 

Comparing the evidence to the resolve memo it is apparent that the Postal Service has not complied with the spirit of the Resolve Agreement. The key portion of the resolve is the second sentence which reads, “Management agrees that, in the event consideration is given to subcontracting out any work  (emphasis supplied), the APWU Local will be informed prior to awarding any contract.” 

It is apparent from the evidence presented that consideration was given to subcontracting out the work at least as early as June 16, 1996 as evidenced by the Construction Contract which contained the materials and labor to be provided by the subcontractor. This sentence indicates that the APWU Local should be informed, “prior to awarding any contract.” The evidence establishes that the work on the actual contract began July 18, 1996.

It is inconceivable that the Postal Service would award a contract of this magnitude on July 17, 1996 and the contractor began work on July 18, 1996. There was undisputed testimony by the Postal Service witness that this work began on July 18, 1996. One must take recognition of the obvious that this contract was awarded some period of time before July 17, 1996. All of the evidence contained in the parties’ Joint 2 and the evidence solicited at the hearing on this issue supports the Union position. 

Therefore, based upon the above record the Postal Service violated the resolve set forth on Page 14 of the parties’ Joint 2 Exhibit. 

Having resolved the first issue in favor of the Union, no opinion is rendered as to the merits as to whether or not the Postal Service had violated Article 32 of the parties’ National Agreement relative to the actual of the subcontracting of the air conditioning work at the Lake Mary, Florida Post Office. 

AWARD 

The grievance is sustained. The Postal Service failed to abide by the August 3, 1995 Sign Off Agreement by failing to inform the Union of any subcontracting work prior to awarding any contract. The remedy awarded is based upon the Union’s testimony as to the number of labor hours which would have taken to complete the project which equates to $3,840.00.


Case Number: H00T-1H-D-02120125

Arbitrator: Irving N. Tranen

For the Union: Charlie Robbins


BACKGROUND

The grievant, a Preference Eligible member, was issued a Notice of Proposed Removal stating that the removal action was based on the following reason for attendance related reasons.  The Included in the Notice of Proposed Removal were the grievant's notice advising him that in addition to his grievance arbitration rights he could meet with a management representative within ten days in accordance with MSPB procedures.  The grievant took advantage of this right and met with local management.  A Union representative did not participate in this meeting.  As a result of this meeting, the original disciplinary decision was reduced to a 14 day paper suspension. 

The Union filed a grievance protesting the Notice of Proposed Removal as it was not party to or in agreement with neither the disciplinary decision nor the unilateral reduction in penalty.  It claimed that the disciplinary action was not for just cause based on the merits of the case.  In addition, as the grievance was pursued, the Union claimed that management failed to provide all relevant documentation and that it failed to fully discuss all elements of the disciplinary action as required by Article 15's "full disclosure" requirement.


The Union


The Union argues that by date of March 18, 2002, Steward Hall, filed with Mr. Ord, Manager of Maintenance, a request for information and documents. This request, argues the Union, was not satisfied by Management and the Arbitrator is requested to recognize that Management's failure to provide requested information is sufficient to create an adverse inference. This adverse inference, says the Union, is sufficient to sustain the granting of the grievance.

The Union asserts that the Step 2 decision dated April 29,2002, stating that 'Management position is the facts of this incident; the employee was issued a Proposed Letter of Removal on 3/12/02, and based on the explanation evidence provided by employee, the Maintenance Manager made a decision on the proposed letter of removal. The decision was to reduce to a 14-days suspension and this notice was given to employee and union in writing. Therefore the proposed letter of removal does not exist and this grievance is denied" was rendered as to a matter which was not moot, despite the threatened removal being reduced to a 14-day paper suspension.

The Union argues that the failure of the Postal Service to "make a full and detailed statement of facts and contractual provisions relied upon" as required by Article 15.2(d) was an error which precluded the Service from making any argument at the arbitration hearing not considered in the Step 2 decision..

Further, the Union argues, the Postal Service, by, its Notice of Decision, dated March 18,  2002, striking charge 1 of the Notice of Proposed Removal, had so weakened its position that a  recision of the entire action should have taken place.

The Union, in conclusion, argues that the grievance filed herein was as to the charges contained in the Notice of Removal.  The fact that the Notice of Decision had reduced the penalty for the elements cited in the Notice of Removal to a 14-day suspension did not deprive the Union of continued jurisdiction of the grievance. Yet, the Union points out, when this matter was heard at the Step 2, the only matter considered by the Step 2 designee was whether this proposed removal,  
by reason of its reduction to a 14-day suspension, was moot. The Step 2 designee held that "...the proposed letter of removal does not exist and this grievance is denied." Therefore, argues the Union, the Postal Service is estopped from arguing any grounds other than the mootness of this grievance.

DISCUSSION

The Union's argument for dismissal is primarily based on the lack of discussion of this grievance as a fourteen (14) day suspension. Management, it argues, based its denial of the grievance at Step 2 solely on the grounds that the reduction of the proposed removal to a suspension rendered 
the matter moot.  It did so wrongly.

In effect, the Postal Service's Step 2 Designee, argues the Union, felt that the 14 - day suspension, which remained after the Notice of Decision was not before him for discussion. Thus, Mr. Jose, although he had authority to further reduce or totally eliminate the 14.-day suspension, gave no consideration to doing so. This resulted in the failure to render the grievance its "due process".

It is clear, based on the provisions of Article 15.2 (Step 2) that the Postal Service, having at the Step 2 discussion argued solely that the Notice of Removal had been reduced to a 14-day suspension and that this matter was moot, cannot advance further arguments if this matter proceeds to arbitration.

As to the question of whether a grievance existed at the Step 2, after the Notice of Removal was reduced - this is one which other arbitrators have also had to face. Arbitrator Norman Bennett in Case No. C90C-4G-D-9601041 held that where a Notice of Proposed Removal had issued and had been subsequently rescinded, that there remained an arbitrable grievance. His succinct comment in that case is worth considering. He opined that "Management argues that the grievance is not arbitrable. Reasons in this regard that when a disciplinary action is reduced to nothing, there is nothing to arbitrate. On this point, this Arbitrator has found in prior cases that jurisdiction extends to whatever the disciplinary action was reduced to in the grievance procedure. If otherwise, an employee in any removal case could be suspended, in effect, between the time of the removal and the time the removal was rescinded without that employee having any recourse to the grievance procedure. Obviously, the parties did not intend such a result in Articles 15 and 16. The grievance is arbitrable."

Arbitrator Edna Francis, in Case No. W4C-SF-D-42528, faced this question in a case where the Postal Service informed the grievant, after serving him with a Notice of Removal, that that disciplinary action was being unilaterally reduced to a twelve calendar day suspension. She held that it was the 12-day calendar days suspension which was then at issue in the arbitration proceeding. She noted "The unilateral suspension at issue here grew wholly out of the removal action and is based upon the same charges as the removal. It is not a separate action requiting a Notice of Charges anew ."

In the instant matter, it is clear that Mr. Jose failed to consider and discuss fully the facts of the present dispute. Rather, he noted that "...the proposed letter of removal does not exist and this grievance is denied."  he totally failed to meet the obligation placed upon the Employer's Representative as set forth in Article 15.2 (Step 2) (d) and (f).

Numerous arbitrators have held that the failure to provide either a detailed Step 2 or where the matter proceeds to Step 3, a detailed Step 3 response results in such prejudice to the grievant as to deny him due process. See Arbitrator Hamah R. King, Case Nos. G94T-1G-C 97028953; G98C-4G-D-01247318; G98C-4G-D-020184.  Arbitrator Ernest Marlatt, Case No. C98T-IG-C 97028 in a statement most applicable here found that "The Union has no contractual right to insist on a Step 2 hearing and/or a Step 2 answer. Of course, by failing to respond at Step 2. the Postal Service is deemed to have admitted that (1) the grievance is timely and (2) the relevant facts recited in the grievance are true."

Arbitrator Patricia S. Plant, speaking to the failure of the Postal Service to meet at either Step 2 or 3 held that "the Arbitrator rules that Management's failure to respond at Step 2 is an admission by Management that the grievance is timely and the relevant facts cited in the grievance are true. ."

AWARD

The grievance is sustained. The 14-day suspension, to which the Notice of Removal was reduced, was not discussed at Step 2.  Failure to do so was a deprivation of the Grievant's right to "due process". Failure to provide such elementary "due process" must result in dismissal of this grievance.


Case Number: G98T-4G-C-00267230

Arbitrator: GLYNIS F. GILDER

For the Union: Mr. Terry B. Martinez

In this case the Postal Service failed to fill a vacant Custodial position.  The Union contended the Postal Service failed to adhere to the provisions of the MS-47 (an incorporated handbook/manual).  For at least the last ten years, the Bartlesville, Oklahoma postal facility has been staffed with two full-time custodians. In December 1999, one of the full-time custodians retired and the Service has yet to fill that vacant position. It is this failure that constitutes the basis of this present grievance.

The arbitrator ruled that the facts in this dispute are simple: where there used to be three employees
(2 full time regulars and one part time regular) working in custodial positions at the Bartlesville facility, there are now two (1 full time regular and 1 part time regular).  Where there used to be two full time employees working 40 hours per week, there are now one full time employee and one part time employee working 26 hours per week.

The Union charges the Service with being out of compliance with the required staffing level. Here, in the present case, it is presumed that current staffing levels called for 3 full time custodians -- nothing was introduced by the Service to rebut this presumption. Once one of the custodians retired in 1999, it became incumbent upon the Service to fill the vacant position to maintain the current staffing level. That is, unless changed conditions at the facility required a change in staffing levels.

The Service would argue that it is Management's exclusive right to maintain the efficiency of its operations and to direct its employees and determine the methods to achieve that end. This is true and is stated explicitly in the Contract between the parties. However, this does not give Management and unfettered privilege to run roughshod over the Contract or an absolute right to "direct employees" or "determine the methods, means, and person el" in any manner that it so desires. All the above actions must be done in accordance with the Contract.

The Service would also assert that it was diligently trying to fill the vacant custodian position. Unfortunately, the Contract does not contain a "good faith effort" clause that would give the Service credit for its attempts.

The arbitrator sustained the Union's grievance and also directed the Postal Service to pay 20 hours/week at the appropriate rate to the current full time regular custodian, to be calculated thirty (30) days from the date the custodial position at issue became vacant.


Gary Kloepfer
National Representative at Large

 


Case Number: G94T-1G-C-99044759

Arbitrator: Ruben R. Armendariz

For the Union: Terry B. Martinez

The grievance is sustained. The Postal Service is directed to pay overtime to the BEM employees for all hours of BEM work continuously performed by other employees (MPE's, ET's, MM's).

In this case the Postal Service assigned Level 7 Building Equipment Mechanic preventive maintenance routes to Level 7 MPE Mechanics and Level 9 Electronic Technicians.  These assignments were made seven (7) days a week on all tours on large automated air conditioning systems and large heating systems before maximizing the building equipment mechanics overtime desired list to preclude the payment of penalty overtime.

The Arbitrator finds that the Postal Service utilized other employees instead of the BEM's in order to prevent the payment of overtime. The-frequency, in which, the units are required for preventative maintenance is not "deminimus" and established a need for the BEM's to perform this required work on a continual basis due to their frequency. The Postal Service argued in the grievance procedure that they could not hire additional BEM's. Moreover, the memorandum entered into by Mr. Downs and Mr. Lindberg specifically stated that they did not anticipate the need for other employees to perform the work of BEM's as long as there existed BEM's at a given facility. The East Texas P&DC has two BEM's.

The Arbitrator finds that the Union has met its burden of proof. The Postal Service violated Article 7.2 B., and C., and Article 8.5, Section 5. D. and 38 of the National Agreement.

The Postal Service is directed to pay overtime to the BEM employees for all hours of BEM work continuously performed by other employees (MPE's, ET's, MM's).


The following information should be shared with the Local Safety and Health Committee so that it can include these items during their safety inspections, etc., of the Facility.

Once a year OSHA publishes a list of the ten most frequently cited safety standards. The list is indicative of trends and changes in workplace safety throughout the nation. The rankings could also indicate changes in levels of enforcement.

In 2002, with the exception of a switch in positions between first and second place, the ranking of cited standards remained consistent with the previous year. The construction industry had the largest number of work-related fatalities. Nearly 24 construction workers were killed every week. With 7,953 citations for scaffolding violations, the industry exceeded the 2001's number by well over 800. The most frequently cited standard of 2001 was the Haz-Com standard, but during 2002 the number fell significantly from the previous year's 7,233 citations to 6,702.

Here is the complete OSHA top ten list:

1.    Scaffolding/Construction (1926.451) 7,953 violations in 2002; 7,134 in 2001
2.    Hazard Communications (1910.1200) 6,702 violations in 2002; 7,233 in 2001
3.    Fall Protection/Construction (1926-501) 5,118   violations in 2002; 4,421 in 2001
4.    Respiratory Protections (1910.134) 4,075 violations in 2002; 3,971 in 2001
5.    Lockout/Tagout (1910.147) 3,796 violations in 2002; 3,875 in 2001
6.    Electrical Wiring (1910.305) 3,106 violations in 2002; 3,125 in 2001
7.    Machine Guarding (1910.212) 2,747 violations in 2002;  2,797 in 2001
8.    Powered Industrial Trucks (1910.178) 2,421 violations in 2002; 2,334 in 2001
9.    Electrical Systems (1910.303) 2,219 violations in 2002; 2,223 in 2001


Gary Kloepfer
National Representative at Large


Case Number: G98T-1G-C-01231810

For the Union: Michael Williams

Arbitrator: Mark R. Sherman

Issue:

Higher Level Pay for Instructing Level 2 and 3 Custodians.

Summary:

In this case the Postal Service assigned the duties of training to a Level 2 Custodian and compensated them at the Level 3 rate of pay for instructing other custodians, level 2 and 3.  The Union grieved this assignment claiming the instructing duties should have been assigned to a Level 3 Laborer-Custodian and that person should have been compensated at the Level 4 rate of pay.  The Union's position was taken due to the fact that the task of training is found in the Level 4 Group Leader position and the task of instructing in this particular facility had always been performed by a Level 3 Laborer-Custodial.

The arbitrator ruled that the Position Descriptions for level 2 and 3 custodians contain no mention of instructional duties or responsibilities whatsoever.  Only when a custodian becomes a level 4 Group Leader does the Position Description indicate that that the individual has the responsibility of instructing new employees.  He went on with his analysis to state that since the higher level assignment was for longer than one week that the seniority provisions of Article 25 Section 4 applied to the selection of the Level 3 Laborer-Custodian that should have been selected for the higher level assignment.  The arbitrator ruled that level 2 and 3 custodial employees who are temporarily detailed to instructional duties described in the Position Description for level 4 Group Leader should receive the level 4 rate of pay in accordance with the provisions of the National Agreement and the relevant Manuals. 


Case Number: G98T-IG-C-00222132

For the Union: Charlie Robbins

Arbitrator: Stephen A. Dorsha
w

Issue:

The Postal Service changed the schedule for maintenance employees and claimed that this temporary change of schedule was accomplished for training purposes.  The Arbitrator found the employees were assigned outside their bid jobs, but they were not given any formal training.  He granted each Grievant out-of-schedule pay adjusted for shift differential and/or any other benefits they received by virtue of the detail to the informal training.

The grievant's schedule, off days and/or tours, were changed to attend a training seminar presented by the Vendor of modified equipment.  Due to a national modification (ICS) to mail processing equipment, a 4-hour information class was given by the contractor for ET's during the installation. This class was intended to give ET's an overview of the ICS System and how it works. The Union argued that this was not a recognized formal recognized training course as it was not planned, prepared or coordinated.  The Postal Service did not provide the Union with information regarding the alleged course at Step 1, 2 or 3 of the grievance procedure. 

The arbitrator sustained the Union's grievance.  He found the training was not recognized training due to the Postal Service's failure to provide requested relevant documentation.   The arbitrator stated, "The Arbitrator is compelled, under the circumstances, to reach one of two "negative inferences": first, either Management had all the required information from the beginning that would have demonstrated that this was "training" that qualified for the exception for out of schedule premium pay; or alternatively that the documentation concerning the nature of the training did not exist at the time that Mr. Gurrola requested it, but that it came into existence some time after the last of his several requests, but before arbitration.

The arbitrator awarded the grievants out-of-schedule premium for all hours attending this informal training.



The following is a summary of two maintenance arbitration awards that have significant value. Contact your National Maintenance Officers should you need a copy of these arbitration decisions

Case Number:    G98T-1G-C 00171151

For the Union:        Gary P. Hamrick

In this case the Postal Service reverted a vacant Preferred Duty Assignment and reposted it claiming an operational justification supported the change of off days.  The Union contested the change under the provisions of its LMOU which required the Postal Service to consult with the Union prior to determining the basic work week for new positions.  The arbitrator sustained the Union's grievance but would not restore the position to its original off days, nor did the arbitrator grant a monetary remedy to the employee that should have been awarded the position had it been posted with the original off days.  The arbitrator ruled the Postal Service's operation justification supported the need to change the off days. He found that the Postal Service had presented a rational business reason for its action in setting the specific non scheduled work days for the position. It explained that the arrival of new processing equipment dictated that the equipment maintenance be performed on the weekend.

The Arbitrator did however render a unique monetary remedy for the demonstrated violation of non-compliance with the LMOU.  In this regard the arbitrator found that a violation without a remedy is most likely to be repeated and the Union should not be placed in a position which requires it to arbitrate a contract violation without remedy. He found that an equitable remedy would require, at the very least that the Postal Service pay the cost to the Union of establishing its right.  He then ruled the Postal Service was required to compensate the Union for all reasonable expenses of arbitrating this case.  The expenses included costs of travel, transportation, lodging, food, and salary paid to the Union advocate for preparation and the hearing.

Case Number:    G98T-1G-C 00232802

For the Union:    Gary P. Hamrick

The Postal Service assigned level 3 Laborer-Custodians to modify carrier mail cases in lieu of Level 5 Maintenance Mechanics.  The arbitrator ruled this assignment violated Article 7.2 of the National Agreement.  He sustained the grievance and compensated the Level 5 Maintenance Mechanics overtime for the time spent by the Level 3 Laborer-Custodians performing work outside of their Standard Position Description. 


The following NATIONAL LEVEL ARBITRATION AWARD is from the National Association of Rural Carriers.  The award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case the Rural Carriers arbitrated the meaning of the "Review and Concurrence" for proposed disciplinary actions.  While the language of the NRLCA's contract regarding the issuance of proposed discipline is somewhat different than the APWU's, it contains the same language and requirement for proposed discipline to be reviewed and concurred with by a higher level management official.  The National Level arbitrator ruled that proposed disciplined that was not properly reviewed and concurred with by a higher level management official was procedurally deficient.  The only remedy for this due process violation was expungement of the discipline with a "full" make whole remedy.

This is a significant award and should be relied upon to support grievances in which we have preserved the argument that the proposed disciplinary action lacked the proper review and concurrence.



NATIONAL ARBITRATION CASE

Case Number: E95R-4E-D 01027978

For the NRLCA: Peer & Gan, LLP by
Dennis D. Clark, Esq and Michael Gan, Esq

Arbitrator: Dana Edward Eischen

Subject: Review and Concurrence for Discipline


The record before the National Arbitrator in this case presents a fundamental conflict between the NRLCA and the United States Postal Service concerning the proper interpretation of the "review and concurrence" provision contained in Article 16, Section 6 of their National Agreement. It is not disputed that this review and concurrence language has been a fertile source of controversy over the last thirty (30) years, resulting in scores of decisions by area arbitrators interpreting and applying its provisions. The ostensible vehicle for bringing certain generic issue(s) concerning the interpretation and application of Article 16.6 to this National Arbitration, at this time, was a grievance concerning the removal of rural carrier Ms. Julie DeWitt, from the Buhl, Idaho post office. However, the DeWitt grievance, per se, is not before the National Arbitrator for decision in this proceeding.


ISSUES

Following Step 4 discussions of these Article 16.6 national interpretive issues between USPS
Labor Relations Specialist William Daigneault and NRLCA Director of Labor Relations Randy
Anderson, Mr. Daigneault denied the national interpretive grievance at Step 4, by letter of September 27, 2001, as follows:

Re: E95R-4E-D 01027978 3. DeWitt Buhl, ID 83316-9998

On several occasions, the most recent being September 14, 2001, 1 discussed with the Union the above-captioned grievance at the fourth step of our contractual grievance procedure.

The issue in this grievance concerns the interpretation of Article 16.6 of the National Agreement concerning review and concurrence of discipline.

It is the Union's position that a violation of Article 16.6, Review of Discipline has occurred in the following situations:

1. There is a command decision from higher authority that instructs the issuance of a suspension or discharge.
2. The decision by the in initiating official to suspend or discharge is reached jointly with the review and concurring official and was not an independent decision by the initiating official.
3. The initiating official or reviewing official failed to complete an independent substantive review of the evidence prior to the imposition of the suspension or discharge.
4. There is no evidence of written review and concurrence prior to the imposition of the
suspension or discharge.

It is the Union's position that a showing of harmful error in relation to review and concurrence is not required to sustain the Union's grievance on the discipline. The Union also contends that their position is "grounded in the language of Article 16.6 and the many arbitration awards between the USPS and NRLCA."

It is the position of the Postal Service that Article 16.6 restricts a supervisor, manager or postmaster from imposing a suspension or discharge upon an employee in the rural carrier bargaining unit without review and concurrence by a higher authority. It protects carriers from anew, inexperienced supervisor that intends to suspend or remove the carrier without just cause. It provides for a higher authority to review the situation (either review of paperwork, discussion with proposing official or general knowledge of the situation giving rise to the charges) to determine whether, on the surface, it appears that the action being proposed is appropriate.. It requires that the higher authority document his/her concurrence with the action being proposed in writing.

Article 16.6 does not require that the concurring official conduct an independent investigation It does not prohibit the concurring official from having previous knowledge of the charges, discussing the charges with the proposing official, being involved in the investigation with the proposing official or providing advice. It does not restrict management from having more than one concurring official.

hi the case at hand, the Union alleges Management violated Article 16.6 claiming the review and concurrence was nothing more than a "rubber stamp." The Union contends that the review and concurrence official did not review anything except the proposing official's request for discipline.

It is Management's position that the concurring officials in the case at hand went above and beyond the requirements of Article 16,6. While the contract only requires review and concurrence by one higher authority, several managers in higher authority reviewed the evidence submitted by the proposing official in this case. All the managers agreed the action being proposed was appropriate.

In the absence of any contractual violation, this grievance is denied. Time limits were extended by mutual consent.

At the arbitration hearing in this matter, each Party submitted its own specific statement of national interpretive issues regarding violations and compliance with Article 16.6, upon which it seeks a decision in this case. Additionally, they submitted by joint stipulation two other "issues of national significance", regarding appropriate remedies for proven violations of Article 16.6 and post-National Arbitration administration of the pending area arbitration cases, now held in abeyance. Rather than rewording the issues advanced by the Parties into some form of synthesized issues, I will address in this Opinion and Award the following joint and several interpretive concerns expressed by the Parties, respectively, in their Step 4 correspondence and at the arbitration hearing, viz.:


1) Is Article 16.6 Review of Discipline of the Extension to the 1995-1999 USPS-NRLCA National Agreement violated if:

a) The lower level supervisor consults, discusses, communicates with or jointly confers with the higher reviewing authority before deciding to propose discipline;

b) There is a "command decision" from higher authority to impose a suspension or discharge;

c) There is a joint decision by the initiating and reviewing officials to impose a suspension or discharge;

d) The higher level authority does not conduct an independent investigation and relies upon the record submitted by the supervisor when reviewing and concurring with the proposed discipline;

e) There is a failure of either the initiating or reviewing official to make an independent substantive review of the evidence prior to the imposition of a suspension or discharge;

f) There is no evidence of written review and concurrence prior to the imposition of a suspension or discharge.

2) Does a proven violation of Article 16.6 automatically sustain the grievance and overturn any discipline, absent a showing of "actual harm", i.e., "that the reviewing official would not have concurred with the proposing official and that the discipline would not have been issued in the first instance".

3) What should be done next with those pending Step 4 cases which have been held in abeyance for area arbitration, awaiting the outcome of this National Arbitration case?


OPINION OF THE NATIONAL ARBITRATOR

Bargaining History, Arbitral Authority and Mutual Intent

Certification of the instant case to Article 1 5.5.C National Arbitration marshaled the first occasion for a definitive resolution of the national interpretive issues presented, supra. However, the contract language under analysis in this case has been part of the collectively negotiated contracts between these parties for some thirty (30) years. Thus, a certain valuable perspective is gained by considering the bargaining history and administrative practice thereunder; especially since this very language has been so frequently interpreted and applied in final and binding decisions by scores of arbitrators in Article 15.5 area arbitration of removal cases.

Turning first to bargaining history, the language which now appears as Article 16.6 of the current USPS/NRLCA National Agreement is essentially unchanged, dating from the 1971-73 Joint Collective Bargaining Agreement. Following passage of the Postal Reorganization Act of 1970, the major craft unions representing postal employees bargained jointly with the Postal Service and entered into a joint collective bargaining agreement covering all crafts. Those unions covered by the first agreement included the NRLCA, as well as the APWU (then known as the United Federation of Postal Clerks), the NALC, the Mail Handlers (and three others which have since been absorbed by the mentioned unions).

Article 16, Section 5 of that seminal agreement provided:

SECTION 5. REVIEW OF Discipline. In no case may a supervisor impose suspension or discharge upon an employee unless the proposed disciplinary action by the supervisor has first been reviewed and concurred in by the installation head or his designee.

In associate post offices of twenty (20) or less employees, or where there is no higher level supervisor than the supervisor who proposes to initiate suspension or discharge, the proposed disciplinary action shall first be reviewed and concurred in by a higher authority outside such installation or post office before any proposed disciplinary action is taken.

Over the intervening years, these unions have sometimes bargained in coalitions of differing combinations and sometimes negotiated separate contracts with the Postal Service, but the review and concur language has remained virtually constant throughout.

As for the NRLCAIPosta1 Service contracts, since the original language of Article 16.6 was adopted by the Parties in the 1971-73 joint Collective Bargaining Agreement, the language was readopted unchanged in the successive agreements negotiated in 1973,1975, 1978,1981, 1984,1988, 1990, and 1993. In 1995, the NRLCA and the Postal Service amended the language of the first paragraph of Article 16.6 to provide as follows: (Emphasis in original, to denominate the changes.)

In no case may a suspension or discharge be imposed  upon an employee unless the proposed disciplinary action has first been reviewed and concurred in by a higher authority. Such concurrence shall be in writing.

It is noted that the NRLCA and the Postal Service jointly prepare and publish an "Analysis of Changes" following renegotiation of their agreements. The 1995 Analysis stated with respect to the above changes in Article 16.6:

The first change clarifies the parties' position that discipline may be imposed by a manager other than the rural carrier's supervisor. The second change makes it clear that the concurring official need not be the installation head, provided the official is a higher authority, i.e., a higher organizational level or higher grade level. The third change requires that there be written evidence of such review and concurrence.


My focus in this case remains the language of Article 16.6 of the current Agreement, in a national interpretive context; with due regard for bargaining and Arbitral history concerning the interpretation and application of that language since 1971, to the extent such evidence assists in determining the mutual intent of the contracting parties. In that connection, from the inception of the first collective bargaining agreement in 1971 to date, a period spanning some 30 years and 11 separately negotiated agreements, the NRLCA and the Postal Service have permitted area arbitrators to interpret and apply the provisions of Article 16.6, without resort to National Arbitration. Indeed, over the last three decades, area arbitration decisions construing and applying the review and concur language of Article 16.6 have been stacking up like cordwood. [Parenthetically, area arbitrators in cases involving the other crafts likewise have consistently interpreted the meaning of the review and concurrence provision in the same manner].

It is worth reemphasizing that, notwithstanding the Postal Service's ostensible opposition to the interpretation and application of that language rendered by virtually all of the area arbitrators in these Article 15.5 .D removal cases, the substance of the "review and concur" language has been repeatedly readopted by the Parties, without material change, in every successive National Agreement since 1971-73. In short, during more than three decades of living with this language as interpreted and applied by the area arbitrators, with a remarkable degree of consistency, in nearly 100 decisions. In all that time, neither Party ever exercised its right to renegotiate the controlling language of Article 16.6. Nor, prior to the instant case, did either Party deem it necessary to submit the review and concurrence language of Article 16.6 for definitive interpretation in Article 15.5.C National Arbitration, as a certified "national interpretive issue

The Postal Service quite properly points out that, under the two-tier arbitration system adopted by these Parties, National Arbitration decisions govern in matters of national interpretations and the area arbitration decisions therefore are not authoritative precedent in this case. But just because National Arbitration decisions pre-empt area decisions in certified cases of national interpretation does not mean that thirty (30) years' worth of arbitration decisions by scores of prominent arbitrators, consistently construing and applying the language of Article 16.6 in area arbitration cases, are irrelevant, immaterial or unpersuasive in this National Arbitration case.

This National Arbitrator has the power and authority, as the contractual "Court of Last Resort", to interpret Article 16.6 in a manner other than as consistently and uniformly interpreted by scores of distinguished area arbitrators. It is manifest that Article 15.5 .C area arbitration decisions are not resjudicata, stare decisis, or in any sense dispositive, in Article 1 5.5.D National Arbitration. My responsibility to function as the designated National Arbitrator is not fulfilled simply by taking an opinion poi1 of area arbitrators.

But, in the absence of a National Arbitration decision interpreting a particular provision of the National Agreement, area arbitrators are regularly called upon to interpret and apply the various provisions of that Agreement, including Article 16.6. Area arbitrators have interpreted arid applied Article 16.6 for more than 20 years in scores of cases, because the Association and the Postal Service have permitted them to do so and there is no contractual prohibition on them doing so. Of course, the interpretation of Article 16.6 in this National Arbitration case will govern and apply in all future area arbitrations, because National Arbitration under the Agreement represents a ruling by the Parties~ designated "Supreme Court". On the other hand, in this particular case, most of those area arbitration decisions do in fact comport with my own interpretation of the language at issue in this case, based upon my independent analysis of the record before mc. Iii short, the great majority of those area arbitration decisions are correct and as the National Arbitrator I reach essentially the same conclusions concerning the meaning of the language of Article 16.6.

Area arbitration may not be the "Supreme Court" under the parties' Agreement, but it most certainly is the "Court of Appeals" and area arbitration decisions are as "final and binding" as National Arbitration awards. If either party disagrees with an interpretation of the Agreement made by one or more area arbitrators, it can initiate a national interpretive grievance at Step 4 and take it onto national arbitration, to obtain a "Supreme Court" ruling. Unless and until that occurs, however, the area arbitration decisions construing and applying Article 16.6 represented the "law" of the Parties. More importantly, in my considered judgment, those accumulated decisions also constitute persuasive evidence of the mutual intent of the contracting Parties.

Those area arbitrations have laid on a persuasive interpretive gloss to Article 16.6 over a period of thirty (30) years, during which the Parties jointly renegotiated the controlling National Agreement eleven (11) times, without even seeking, let alone achieving, any significant modification of the language of Article 16.6. When, as here, the area arbitration awards uniformly interpret a contract provision over a long period, and neither party seeks national arbitration or change in the contract language, but rather continually readopts the critical contract language time and time again in collective bargaining, it may well be concluded that the area Arbitral interpretation has been incorporated into the Agreement. Elkouri & Elkouri, How Arbitration Works (5th edition) (BNA 1997), states the governing principle of incorporation or adoption, at page 615:

ll]f the agreement is renegotiated without materially changing a provision that has been interpreted by arbitration, the parties may be held to have adopted the award as a part of the contract Indeed, the binding force of an award may even be strengthened by such renegotiation without change.

The Postal Service may be technically connect, as a matter of logic, that incorporation/re-adoption theory should not be dispositive, because none of the myriad arbitration decisions construing and applying Article 16.6 was in the National Arbitration forum. However, to argue that the adoption theory should not even be considered seems to me an elevation of form over substance in this particular factual record. In my considered judgment, the Arbitral gloss applied by the area arbitrators has in fact and in practice been largely accepted by both Parties and is reflective of their mutual understanding and intent concerning the interpretation and application of Article 16.6 in removal cases.

Issues No. 1(a)-(d): Article 16.6 Violation/Compliance

When the rhetorical excesses of ardent advocacy are stripped away, I do not perceive any meaningful disagreement between these Parties with the fundamental proposition that Article 16.6. requires two separate and independent managerial judgments, each based on substantive review of the record evidence, before a suspension or discharge disciplinary action may be imposed on an employee: the first by the initiating official who proposes discipline, and the second by a higher authority who must review and concur in the proposed discipline before it is imposed upon the employee.

It necessarily follows that the requirement of two separate and independent judgments, constitutes the very heart and core of Article 16.6, is violated when the reviewing/concurring official "commends" or "dictates" the disciplinary action to the proposing official, when the higher authority merely "rubber-stamps" the disciplinary action proposed by the employee's supervisor and/or when the sequential steps of a separate and independent supervisory initiation, followed by a separate and independent higher authority review/concurrence, are merged into a single consolidated joint decision by the two managers to suspend or discharge the employee.

Just as the area arbitration decisions rendered by a long line of prominent arbitrators have consistently held, I now hold that a violation of Article 16.6 occurs whenever: (1) the initiating official is deprived of freedom to make his own independent determination to discipline by a "command decision" dictated from higher authority to suspend or discharge; (2) the initiating and reviewing/concurring officials jointly make one consolidated disciplinary action decision, or (3) the higher authority does not review the record and consider all of the available evidence before concurring with the supervisor's proposed discipline. In each such instance, because there have not been two separate and independent judgments  on discipline, the employee is deprived of the essential due process check and balance protection that Article 16.6 is intended to provide.

However, so long as the sine qua non of Article 16.6, separateness and independence of judgment in a two-stage process, is not violated by "command" decisions, joint decisions and/or "rubber-stamping", Article 16.6 does not bar the lower level supervisor from consulting, discussing, communicating with or jointly conferring with the higher reviewing authority before deciding to propose discipline. Indeed, it is common, and in many ways commendable and conducive to fulfillment of the intent of Article 16.6, for the lower level' authority to communicate with higher management and discuss policies, options, and other factors to be considered, before determining whether, and to what extent, to propose suspension or discharge of an employee.  In  short, so long as the initiating official retains independence of judgment and is not commanded by higher authority to issue the discipline, such communications for advice and counsel between the initiating official and a higher authority are to be encouraged rather than chilled or prohibited. The determining factor under Article 16.6 is not whether the officer in charge seeks advice and counsel outside his office but whether, once having obtained such information, the initiating official acts independently or surrenders that independence completely to the person from whom he has sought such advice. In the former case, Article 16.6 is not violated but, in the latter case, Article 16.6 is violated.

By the same token, it is not perse a violation of Article 16.6 when the higher level authority relies in the reviewing/concurring step upon the record considered by the lower level official in proposing the discipline. The higher authority is not required by Article 16.6 to make an "independent investigation". In my judgment, the requirements of Article 16.6 are met when the higher authority makes a substantive review of and bases the decision to concur on the record developed below.

Contrary to the position advanced by the Postal Service in this case, however, that process of review and concurrence contemplated by Article 16.6 is not a ministerial formality or a mere technical "laying on of hands" by the reviewing/concurring official. The requirement of a separate and independent second step of review and concurrence by the higher authority is not met by just a declaration of agreement with the first step supervisor's proposed disciplinary action. Compliance with Article 16.6 requires a substantive review of the matter by the higher authority in light of all the current information and the higher authority's concurrence with imposition of the disciplinary action proposed by the supervisor. Since the 1995 amendments, Article 16.6 specifies that this statement of concurrence by the higher authority must be set forth in writing.

Issue No. 1, supra , presents a subset of six (6) specific interrogatories concerning Article 16.6 compliance and violation, submitted by the Parties for determination in National Arbitration. Based on all of the foregoing, I conclude that Issues 1(a), and 1(d) are answered in the negative and Issues 1(b), 1(c), 1(e) and 1 (1) are answered in the affirmative.


Issue No. 2- - The Remedy for Proven Violations of Article 16.6

The 'operative language of Article 16.6 provides (emphasis added):

In no case may a suspension or discharge be imposed upon an employee unless the proposed disciplinary action has first been reviewed and concurred in by a higher authority.

This language clearly and unambiguously mandates that compliance with the two-step, two-stage process set forth. in Article 16.6 is a condition precedent to the imposition of a removal or suspension. Accordingly, I concur without equivocation with those many area arbitrators who have concluded that the substantive violations of Article 16.6 set forth in Issues 1(b), 1(c) and 1(e) invalidate the disciplinary action. Because these are substantive violations which effectively deny an employee the due process rights granted by Article 16.6, persuasive proof of such fatal violations requires Arbitral reversal of the improperly imposed suspension or discharge, without consideration of the underlying merits of the disciplinary action, i.e., reinstatement with "make whole" damages.

In my considered judgment, those relatively few area arbitration decisions which have engrafted onto the condition precedent language of Article 16.6 an additional requirement of proof of "actual harm", notwithstanding persuasive proof of a "command decision", a "joint decision" or that the reviewing/concurring official merely "rubber-stamped" the proposed disciplinary action, are just plain wrong. Under different contract language, arbitrators might properly overlook procedural defects in administration of discipline which do not unduly compromise the tights of an employee whose suspension or discharge is otherwise justified on the record. However, the precise terminology of Article 16.6 precludes recourse to that. "harmless error" argument. If this plain language of Article 16.6 occasionally produces a manifestly unfair result, as undoubtedly ii has in some cases, the proper recourse is renegotiation at the bargaining table, not Arbitral legislation of "actual harm" or "harmless error" rules which are at odds with the express wording of Article 16.6.

The only caveat I would add concerns the procedural violation described in Issue 1(0, i.e., failure of the Postal Service to produce evidence that the higher authority's concurrence was reduced to writing, as required by the 1995 amendment to Article 16.6. Such a failure to express concurrence in written form clearly is a procedural violation of Article 16.6, for which an Arbitral remedy might well be appropriate. But it is not so clear that such a violation, standing alone, would invalidate the disciplinary action and require reversal and reinstatement in every case.

The record in this matter is insufficiently developed to make an informed judgment concerning bargaining history and mutual intent regarding the 1995 amendment. The facts and circumstances of each particular case determine whether a procedural failure to concur in writing adversely impacted substantive Article 16.6 rights of an individual suspended or discharged employee. For these reasons, I refrain from making a definitive generic ruling on that single remedial aspect of the submitted issues at this time. Area arbitrators remain free to exercise their own best judgment as to whether, in the facts and circumstances of the individual case, an Issue 1(1) type of violation requires reversal of the disciplinary action or some other remedy. For Issue 1(b), 1(c) and 1(e) violations, however, Article 16.6 requires reversal of the disciplinary action and reinstatement with remedial "make-whole" damages.


AWARD OF THE NATIONAL ARBITRATOR
CASE NO. E95R-4E-D 01027978

Having been designated National Arbitrator in accordance with Article 15, Section ~.C of the National Agreement between the above-named parties, and having been duly sworn and having duly heard the proofs and allegations of the parties, I hereby AWARD as follows;

ISSUE NO.1

Article 16.6 Review of' Discipline of the Extension to the 1995-1999 USPS-NRLCA National Agreement:

a) Is not violated if the lower level supervisor consults, discusses, communicates with or jointly confers with the higher reviewing authority before deciding to propose discipline;

b) Is violated if there is a "command decision" from higher authority to impose a suspension or discharge;

c) Is violated if there is a joint decision by the initiating and reviewing officials to impose a suspension or discharge;

d) Is not violated if the higher level authority does not conduct an independent investigation and relies upon the record submitted by the supervisor when reviewing and concurring with the proposed discipline;

e) Is violated if there is a failure of either the initiating or reviewing official to make an independent substantive review of the evidence prior to the imposition of a suspension or discharge;

g) Is violated if there is no evidence of written review and concurrence prior to the imposition of a suspension or discharge.

ISSUE No.2

(a) Proven violations of Article 16.6 as set forth in issues 1(b), 1(c) or 1(e) are fatal. Such substantive violation invalidate the disciplinary action and require a remedy of reinstatement with "make-whole" damages.

(b) Whether a violation of Article 16.6 as set forth in Is sue 1(f) is fatal, invalidates the disciplinary action and requires a remedy of reinstatement with "make-whole" damages is for the area arbitrator to determine based on the facts and circumstances if the individual case.

ISSUE No.3

Case No. E95R-4E-D 01027978 and all other similar cases held in abeyance at Step 4, pending this National Arbitration interpretation of Article 16.6, are remanded to area arbitration, for priority scheduling consistent with Article 15, Section 5 .A of the National Agreement.


The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case the Postal Service implemented a policy to automatically request documentation for all Emergency Annual Leave requests.  It claimed that its new RMD program permitted it to demand such documentation.  The arbitrator rejected the Postal Service's position and required compliance with Section 512.412 of the ELM. 


Regular Arbitration Panel

Case Number: H00T-1H-C- 02170630

Arbitrator: Robert B. Hoffman

For the Union: Donald Delgman

Summary

The grievance is sustained. Management shall abide by the appropriate ELM provisions, as discussed in this award, when administering requests for emergency annual leave.

Issues:

Did management violate the National Agreement by automatically requesting the grievant provide documentation for an emergency annual leave? If so, what is the remedy?

Facts:

On May 6, 2002, at 0554, the grievant called his supervisor, Greg Johnson, and requested annual leave for a family emergency. His begin tour was scheduled for 0630. The grievant and his wife had taken their dog to the emergency room for a congestive heart failure condition; he was now concerned about his wife's reaction to the dog's emergency. Johnson told the grievant to call the Resource Management Database ("RMD"). The grievant immediately called RMIO. After explaining the need for emergency annual leave ("EAL"), Attendance Control Supervisor Martin told the grievant that he would need documentation.

Martin testified that he had instructions to ask for documentation for "each EAL, but if the immediate supervisor takes a verbal than that is his prerogative." Martin disclosed that he did not find this verbal exception in the ELM. He noted that his instruction to demand documentation comes from ELM 666.82, which provides:

Absence without Permission. Employees failing to report for duty on scheduled days, including Saturdays, Sundays and holidays, will be considered absent without leave except in actual emergencies which prevent obtaining permission in advance. In emergencies, the supervisor or proper Union official will be notified as soon as the inability to report for duty becomes apparent. Satisfactory evidence of the emergency must be furnished bier. An employee who is absent without permission or fails to provide satisfactory evidence that an emergency existed will be placed in a nonpay status for the period of such absence. The absence will be reported to the appropriate authority. (emphasis added)

The grievant produced documentation the next day. He asked supervisor Johnson why he needed documentation. Johnson replied, "Because the ELM says so." If the grievant was unable to get documentation Johnson would have accepted a verbal statement. The parties stipulated that a past practice existed at the St. Petersburg P&DC whereby the employee's immediate supervisor would approve or disapprove requests for EAL based on the employee's explanation either verbally or in writing. Documentation was not required. In December 2001 the Suncoast District instituted the RMD program. A card distributed to all employees referred to a toll free 800 number to call for "late or unscheduled absences." The grievant testified that he did not receive the card but he had the correct 800 number for RMD.

Positions:

The Union maintains that the leave program must be administered, according to ELM 511.1, "on an equitable basis for all employees, considering (a) the needs of the USPS and (b) the welfare of the individual employee." EAL situations can be stressful. Immediate supervisors have intimate knowledge of an employee and his work habits. To have a blanket policy that is stronger than the local practice shows no consideration for the welfare of the employee. More relevant from the ELM is 5 514.412. It provides:

An exception to the advance approval requirement is made for emergencies; however, in those situations, the employee must notif~' appropriate postal authorities as soon as possible as to the emergency and the expected duration of the absence. AS soon as possible after return to duty, employees must submit Form 3971 and explain the reason for the emergency to their supervisor. Supervisors must approve or disapprove the leave request..

The Union does not quarrel with the right of management to have employees call RMD. The dispute is over the blanket demand for documentation when there is an emergency. The supervisor s authority in emergencies is found in 512.412 and not in 666.82. The latter rule is for an employee who does not show up for work and provides no notification. This is an AWOL. There is no conflict between these sections.

Management contends that under 666.82 when employees do not report they are considered AWOL, unless they have an emergency. In that case they must present "satisfactory evidence." Accepting an employee's word all the time is insufficient. Some employees based on their past record may not be credible. As a result RMD relies on documentation and considers it be "satisfactory evidence." It is true that where the supervisor knows the employee he could still rely on a verbal explanation, if documentation is not produced. it is also true as pointed out by the Union that in a "Comment" to 512.412, management has stated in writing that "decisions are to be made on a case-by-case basis and are not automatic." Testimony from the RMD supervisor confirmed that there is room for discretion.

Conclusions:

There is no question that when management instituted the RMD it also required for the first time that every employee requesting EAL produce documentation for the emergency. Prior to this time management at St. Petersburg allowed its supervisors to determine if verbal or written explanations would suffice. The attendance control supervisor for the District justifies his blanket type instruction on ELM 666.82, which states that "satisfactory evidence of the emergency must be furnished later."

When first considered, this wording from 666.82 seems to be sufficient to conclude that management has the right to demand documentation for an EAL request. It is direct and to the point. The evidence of the emergency "must be furnished." Although the word "documentation" is not used, management can decide what is "satisfactory evidence" and may conclude that documentation is needed for the evidence to be satisfactory. But there are a number of concerns with this hasty conclusion.

The ELM section relied on by management, 666.82, refers to obtaining "satisfactory evidence" in those absence situations where "actual emergencies . . . prevent obtaining permission in advance." In this case the grievant notified management at 0554, in advance and prior to the start of his tour at 0630, that he would be absent. He requested annual leave for emergency reasons. Although the time prior to the start of his tour was short, on its face the grievant's emergency did not prevent him from obtaining permission for this leave in advance. Under a literal reading of this rule it did not trigger the need for "satisfactory evidence".

Given this short period it could be argued that the leave could not be approved in advance. Approval in advance is dependent on the supervisor who signs form 3971. ELM 512.411 refers to annual leave being requested on 3971s and "approved in advance by the appropriate supervisors." Emergencies by their very nature occur when sufficient time is not always available to make an absence scheduled or allow for approval; annual leave by definition is usable for "emergency purposes." 512.11.

As such, the rules provide for an exception for advance notice if the employee has an emergency that causes the absence. The advance requirement is unnecessary, if, according to ELM 512.412, employees notify management "as soon as possible," and then "as soon as possible" after return to duty "explain the reason for the emergency to their supervisor." There is no mention in this authorization rule that, for EAL, the employee must submit documentation or even "satisfactory evidence." This rule only speaks of an explanation.

It could also be argued that the two rules require "satisfactory evidence," even if in one rule it is called an explanation. But if a rule is to be followed it must be clear and understandable. To say "explain the reason" in one and "satisfactory evidence" in the other, suggests that there is some difference between the two rules. If management intended for an explanation to be "satisfactory evidence," without saying so, its intent becomes relevant in explaining these rules. It is thus revealing that in its written "comments" to 512.412, which management acceded to at the hearing, it called for "satisfactory evidence" to "explain" why the emergency prevented reporting for duty. If the employee failed to provide this evidence he would then be considered AWOL. However, it is significant that the management commentators limited the need for this type of evidence. They advised supervision in these comments that when confronted with an EAL authorization situation under 512.412 they consider the following: "Require evidence any time there is reason to question the legitimacy of an emergency leave request. Such decisions are to be made on a case to case basis and are not automatic."

The local practice prior to the RMD at St. Petersburg was to do just that. Supervisors made decisions based on individual situations and would decide whether to request written documentation after hearing the verbal explanation. The attendance and control supervisor for the District readily acknowledged that he is under instructions to make documentation automatic, to apply it to every single EAL request. As such, management has unilaterally changed the local documentation practice as well as ELM 512.412. The fact that this changed policy is tempered with a qualification that supervisors may decide not to enforce it, as disclosed by the attendance control supervisor, still leaves the requirement burden on the employee requesting EAL.

Award:

Based on the above and the entire record, the grievance is sustained. Management shall abide by the appropriate ELM provisions, as discussed above, when administering requests for emergency annual leave.


The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case the Postal Service subcontracted the fabrication and installation of fan guards on the air handling equipment.  The arbitrator sustained the Union's grievance.  In sustaining this grievance the arbitrator relied upon a Step 3 settlement which required local management to meet with the Union and discuss the impact the subcontracting may have upon the local workforce. The arbitrator ruled that the Postal Service's failure to meet and discuss the impact that the subcontracting may have upon the workforce violated the Agreement.


Regular Panel Arbitration

Case No: C90T-1C-C-95974118

Arbitrator: Michael E. Zobrak

For the Union: Gary Kloepfer


Award Summary

The Postal Service contracted out the fabrication and installation of air-handler guards at the Cincinnati BMC. No cost comparison was done. The Postal Service did not meet with the Union prior to contracting out the work as required by a Step 3 grievance Settlement. The Postal Service took the position that the employees did not have the necessary skills and that the required equipment was not available at the BMC. The failure to comply with the terms of the Step 3 Grievance Settlement, thereby failing to resolve outstanding issues, requires that the grievance be sustained. The Postal Service is directed to pay to the MPE Mechanics on the OTDL a total of 317 hours at the appropriate overtime rate, as requested by the Union at Step 2.


FACTUAL BACKGROUND

On July 26, 1993, the Postal Service entered into a contract with Terreri Construction to fabricate and install air-handler guards on heating and air conditioning units at the Cincinnati Bulk Mail Center (BMC). Following an OSHA safety inspection at the BMC, the Maintenance Engineering Specialist initiated a Facilities Service Request on August 13, 1993. The safety inspection had identified a potential safety hazard because the air-handler guards were open at the back and allowed a person access between the guard and the side wall. 'Terreri Constriction subcontracted with Rickety Welding and Fabrication to perform a major portion of the contracted work.

The decision to contract the work and not used bargaining employees from the BMC was not made at the local level, but came from the Allegheny Area office. Union officials at the local level were not notified in advance of the Postal Service's intent to contract out the disputed work. During the process of the work being contracted out, a Postal Inspection Service investigation of whether the work was being conducted in accordance with the contract issued to Terreri Construction was undertaken. The Union submitted information to the Postal Inspection Service indicating that the work was not performed in accordance with contract specifications.

The instant grievance was filed on or about June 20, 1995. William Cole, MPE-7 and Maintenance Craft Director, testified that the Tour 3 Steward approached him, reporting that he had witnessed a contractor welding sheet metal on to the air guards. Cole noted that the Union had not been notified of the contracting out of this work. In its grievance the Union took the position that MPE Mechanics on the Overtime Desired List (OTDL) could have performed the contracted out work and that management had not performed a cost comparison.

At the Step I grievance meeting the Union presented the Postal Service with a cost comparison indicating that even if MPE's were used on overtime, a labor cost savings of $12,839.81 would result by having on-site employees perform the work. It is Cole's recollection that at the Step I grievance meeting the Postal Service took the position that it did not have the equipment or qualified employees to perform this type of work.

The Union entered in the record a Step 3 grievance settlement between Union Representative, Jim Wheeler, and Management Representative, Luke Sheridan. That settlement, dated August 4, 1993, stated that "Prior to letting contracts out for maintenance related projects (such as upgrading of the fire alarm system), the local union will be included in a discussion as to the feasibility of using on-site Postal employees to perform the necessary tasks. This constitutes full and final settlement of this grievance."

According to Cole, he did not see the work in dispute until after it had been completed. In his estimation, the project involved cutting of sheet metal, as well as welding and bending the sheet metal. The sheet metal was tacked to the air guards. Cole noted that the Postal Service has at least five (5) portable welding machines that could have been used in the project and employees of the Postal Service at the BMC were qualified to operate the welders.

The Union also introduced copies of work orders that required its employees to weld and bend sheet metal. The bending was accomplished by using a brake and shears. Cole also testified that he had operated the brake, used to bend metal, since 1990. He claims to have cut sheet metal in cone shapes, as well as different angles, and put them on the brake. He did state, however, that he did not know if he could bend metal with using radii, nor does he know about making channels. He did point out that the contract issued for the work did not mention bending sheet metal or making channels.

William Bryant, MPE-7, did the cost comparison for the Union. Bryant claimed to have a background in construction and has worked as a carpenter along with sheet metal. Upon request of a Postal Service representative at a meeting on this grievance, Bryant examined the work performed by the contractor. He believes that the maintenance employees at the BMC had the equipment to cut, bend and weld the sheet metal. He further stated that he has performed fabrication work using the brake. Bryant pointed out that the contractors worked a total of 763 hours on the project, while he estimated that the Postal employees could have accomplished the job using 317 hours of labor.

Lee Roy Maxie, MPE-7 testified that he had considerable experience using the brake. Maxie believes that he could make all of the pieces necessary to complete the project, including making the required bends. In addition he is a qualified welder. He stated that he has made posts for the conveyor and parts for the bundle sorter on the B-1belt. Maxie stated that he can form small boxes by bending metal and that he has made replacement guards.

The Postal Service noted at the beginning of its case that several of its key witnesses were no longer employed and could not be compelled to testify. Richard Eckes, Maintenance Engineering Specialist, was the only witness to be called by the Postal Service. He issued the request for the modifications for safety purposes. He feared that an employee could touch the moving belts on the equipment. Eckes dealt with the Allegheny Area's Office. He also coordinated the times that the contractors were on site. He went over the scope of the work and what corrections he wanted done. Eckes further observed that the guards were difficult to remove and a two inch gap created a potential danger.

Eckes does not believe that the Postal Service at the BMC had the equipment necessary to complete the job. He observed that the BMC has equipment to bend sheet metal on a straight line; it does not have the equipment to bend sheet metal on a ninety-degree radius. He admits that he did not meet with the Union to discuss the project. He maintains that while the maintenance employees at the BMC do good work, they are not sufficiently familiar with OSHA regulations to assure that they would properly complete the task.

Under cross-examination Eckes agreed that the contract given Terreri does not mention 051-IA specifications. While the Postal Service was not fined for these unsafe conditions, it was compelled to correct the safety problems. Eckes agreed that some of the work could have been performed in-house. lie further recalled that BMC employees have made guards in the past.

UNION CONTENTIONS

The Union contends that the Postal Service violated the National Agreement when it improperly subcontracted the fabrication and installation of air-handler guards at the Cincinnati BMC. This particular instance of subcontracting was not carried out in accordance with the provisions of Article 32. In addition, subcontracting at a BMC requires additional considerations. Staffing guidelines and criteria require that the Postal Service have a sufficient number of employees available to allow for the in-house staffing of special projects, such as the fabrication and installation of guards on the air.. handlers. The staffing package at the Cincinnati BMC designates 26 maintenance employees who were needed to perform this type of work. Clearly the facility was staffed to accomplish this project. In fact, maintenance employees at this location have performed this type of work in the past. The Postal Service failed to perform a cost comparison of subcontracting versus the use of in-house labor. The in-house maintenance employees had the skills to perform the work in dispute. Only if the employees lacked the required skills could the work be subcontracted. If a clear cost advantage did not exist, then the contracting out could not be done. in this case the Postal Service did not perform a cost comparison before Step 2 of the grievance procedure was held. The Postal Service has failed to establish that there was a demonstrated economical advantage to subcontracting this work. In fact, the Postal Service failed to provide the Union with all requested relevant information at the lower steps of the grievance procedure so that the Union could determine if the Postal Service had proper cause for subcontracting. The Postal Service never provided any reasons for undertaking the subcontracting.
The Postal Service failed to provide testimony from anyone associated with the Area office who could explain the factors used in reaching the determination to subcontract. The failure to provide such information is a violation of the full-disclosure provisions of Article 15 prejudiced the Union's case. No consideration should be given to any such arguments. Eckes, the Postal Service's only witness, did not participate at any step of the grievance procedure. His testimony must be viewed as being self-serving. There is no evidence that the Area or Eckes ever considered the issue of employee qualification. In addition, the Postal Service did not present cost data for a determination on the economics of decision to subcontract. Certainly no such information was presented by the Postal Service in a timely manner and any such evidence presented at the hearing cannot be given any consideration.
The Union, on the other hand, has shown that there were qualified employees available to perform this work. The Union requests that the grievance be sustained and seeks payment to employees on the overtime desired list at the overtime rate of pay for all hours worked by the contractor.2

POSTAL SERVICE CONTENTIONS

The Postal Service takes the position that it properly contracted out the work in dispute. It learned of OSHA violations following an Allegheny Area Safety Inspection. The Area maintained responsibility for the corrections of the violations. It was not an issue for local management to handle and it was not a budget or work item for the BMC. The National Agreement gives the Postal Service the right to contract out maintenance work at the BMC. In this case management faced the need to correct a safety problem. It has often contracted out work at the BMC. There are a myriad of maintenance-related services for which the Postal Service contracts out. New ground was not broken in this instance. The Postal Service complied with its contractual obligations under Article 32. It did give full consideration to the five factors cited therein. The Union has no evidence that the five factors were not properly considered. Fabricating and placing guards around air-handlers is a National Level Maintenance Craft issue. The work done at the Cincinnati BMC had no impact on the National Level. The Union only asked for information related to dollars. It is evident that the Union is only interested in obtaining more dollars for its members. The Union fails to consider the public interest, efficiency of operations or the availability of equipment. The Union has not shown that use of the independent contractor was not cost effective.
All MPE's were fully employed during the period of the contracting out. The majority of the MPE's worked some overtime during that same period. Employees have no guarantee of overtime under Article 32. Contracting out allows the regular workforce to concentrate on their regular duties and to be ready for regular overtime assignments. The ninety air-handlers need an immediate safety correction. The MPE staffing was 16 persons short at that time. The Postal Service seeks denial of the grievance.

DISCUSSION AND FINDINGS

The disputed work was undertaken after a safety inspection revealed OSHA violations related to guards placed around air-handlers. It was determined that the existing guards did not offer the full measure of protection required by QSHA to fully assure employees safety. In order to correct the safety hazard, new guards needed to be fabricated and installed. The process required the ability to cut and bend sheet metal into shapes and angles to close the existing gaps on the guards. Having toured a portion of the project area on three occasions during the two days of hearing, the extent of the project appeared to be rather straightforward. The major focus of this dispute is whether the Postal Service had the equipment necessary to bend the sheet metal of the designated radii.
While this project took place at a BMC, there is no evidence that it falls under the "Special Projects Staffing" provision of the Interim Bulk Mail Center Maintenance Staffing Guidelines and Criteria. This provision does encompass special projects such as equipment modifications. The cited provision covers the Bulk Mail System, not an air handling system that has no direct relationship to the operation of the Bulk Mail System.
The matter is governed by the provisions of Article 32, Subcontracting. That provision requires the consideration of five criteria when evaluating the need to subcontract. Before subcontracting is undertaken due consideration must be given to public interest, cost, efficiency, availability of equipment and the qualification of employees. In its Step 2 and Step 3 grievance responses the Postal Service took the position that there were no qualified employees to perform the work and that the necessary equipment was not available at the BMC. The Postal Service, at Step 3, further maintained that the contracting out had no significant impact on the bargaining unit's work. in particular, the Postal Service contended that the brake utilized at the BMC could not bend the metal in the required configuration. The Postal Service did not claim that any other criteria applied to its decision to subcontract.
The Postal Service did not claim that it would be more cost efficient to subcontract the work in question. In fact, no cost comparison was conducted by the Postal Service prior to making the decision to subcontract. The Postal Service has not challenged the Union's cost comparison that bargaining unit maintenance employees working on overtime could have performed the labor on the disputed work at a savings of $12,839.81 over the labor costs of the contractor. While not determinative of this issue, it should also be noted that the Union's review of materials costs revealed a significant difference in material costs between what was bid by the contractor and materials that the Union maintained could be purchased.
The Union submitted numerous work orders indicating that bargaining unit members at the BMC have been assigned to perform similar work on many occasions. That work has included fabrication, repair and welding of guards, as well as similar projects. The Postal Service did not offer testimony as to how these projects may have differed from the disputed work in this case. Lacking any contradiction of the work orders presented by the Union, it must be concluded that the bargaining unit employees at the BMC were qualified to perform the disputed work.


The second basis for denying the grievance is the Postal Service's claim that the equipment needed to perform the job was not available. The work orders presented by the Union indicate that bargaining unit employees have been assigned to perform welding. Union witnesses pointed out that they have been trained in welding techniques and that there are welders available at the BMC to perform the work. Of critical importance to the determination of this case is the matter of the ability of the brake to bend the sheet metal in accordance with the specified radii.


A review of the testimony presented at this hearing indicates a claim by the Union that its employees have cut and bent metal in a manner similar to the way the subcontractor cut and shaped metal. Eckes, however, testified that the BMC did not have the equipment available to bend the sheet metal on a 90-degree radius. He stated that the brake could only make a straight bend, not the curved bends required here. The Union points out that Eckes did not participate at Steps I or 2 of the grievance procedure and he should not now be permitted to advance his claims that lack of equipment and skills to properly bend the material required the contracting out of this work. His opinions were not raised in a timely fashion and are merely generic statements.


A review of the Postal Service's Step 2 answer reveals that the Postal Service took the position that the necessary equipment was not available since the brake utilized at the BMC will not bend metal in the required configurations. In light of this answer, the testimony given by Eckes cannot be labeled as new argument. His testimony was consistent with the position clearly enunciated by the Postal Service in its Step 2 answer. As such it became the Union's responsibility to establish to show that it did have the necessary equipment available to bend metal using the brake in the required configurations.


While Cole testified that he has used the brake and shear and that he has cut sheet metal in a cone shape and placed it in the brake, under cross-examination he stated that he did not know if he could shape the sheet metal to the stated radii. Maxie, on the other hand, testified that he could have easily performed the bends. He then cited various projects he has worked on.


The issue of whether the BMC had the necessary equipment available is exactly the type of issue that could have been resolved had the August 4, 1993 Step Three Grievance Settlement been followed. That settlement called for the local Union to be involved in discussions as to the feasibility of using on-site Postal employees to perform the necessary tasks. That settlement was binding on the parties and is controlling in this dispute. The Postal Service failed to employ the terms of this settlement and, instead, unilaterally undertook without any discussion with the local Union that could have resolved the issue of if the required equipment was available at the BMC.
The failure of the Postal Service to comply with the Step Three Grievance Settlement demands that the issue of if the BMC had the necessary equipment to perform the required work must be resolved in favor of the Union. The final and binding Step Three Grievance Settlement set forth terms that must be followed at the BMC before contracting out is undertaken. Had they been followed, this dispute could have been resolved or, at the very least, sufficient information could have been developed to clearly and unequivocally determine if the necessary equipment was available at the BMC.


Based on the foregoing, it is found that the disputed subcontracting at the BMC related to the fabrication and installation of guards on the air-handlers must be resolved in favor of the Union. The Postal Service is directed to pay to the MPE Mechanics on the OTDL a total of 317 hours at the appropriate overtime rate, as requested by the Union at Step 2.


The following NATIONAL LEVEL award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case, the Clerk Craft grieved that Article 7 Section 2 prohibits management from making "intracraft" assignments.  The Union argued that this case should be decided on the facts and that the issue, intracraft assignments, was not an interpretive issue.  The Union sought application of Arbitrator Cushman's earlier award to the facts at hand.  The arbitrator disagreed with the Union and ordered a hearing on the interpretive issue.


National Arbitration Panel - (Interim Award)

Case No. C90C-1CC-93018526

Arbitrator: Shyam Das

For the Union: Arthur M. Luby, Esquire

Award Summary

The issue of whether Article 7.2 applies to, and is violated by, intra-craft cross-wage level assignments such as those involved in this grievance is arbitrable at the National level.

BACKGROUND

On August 16, 1992, the Union filed a class action grievance in Lehigh Valley, Pennsylvania. The basis for the grievance is set forth in the Step 2  appeal form as follows:

During the period May 29, 1992 - June 5, 1992, management used 23 different level 5/6 clerks to perform duties in level 4, in the automation area of the facility. These 23 clerks accounted for a total of 246 hours of work performed in lieu of level 4 clerks.

The Collective Bargaining Agreement (CBA) provides no language for such crossing of wage levels. Article 7.2.B provides for such crossing of occupational groups if in the same wage level. This assignment clearly violates the CB~ since it is to circumvent the assignment of overtime work to the level four clerks and the posting of bid positions to the clerk craft.

These assignments are being made not because of light workload in the level 5/6 areas, since most of these clerks are removed from their primary job areas and that mail then sits. Management must compensate the level 4 clerks at the appropriate overtime rate to include penalty overtime for all hours worked by the level 5/6 clerks.


The grievance was appealed to Step 3 without a Step 2 decision. The Step 3 appeal notes: "The parties have agreed that this grievance would be the representative case and that no further grievances must be filed." After discussion at Step 3, the Postal Service issued a decision on April 25, 1993 stating:

The matters presented by the union concerning this grievance, as well as the applicable contractual provisions, have been reviewed and given careful consideration.

The union's Representative's oral argument and submitted documentation were considered, but were not sufficiently persuasive to alter local management's position. Therefore, the corrective action requested by the union is not granted.

It was mutually agreed that this grievance does not involve any interpretive issue(s) pertaining to the National Agreement or any supplement thereto which may be of general application....

The grievance then was appealed to regional arbitration, at which level the Postal Service declared it raised an interpretive issue and sent the case to Step 4 in November 1993.

On December 10, 1993 the Union appealed the grievance to Step 4. This appeal identified the applicable contract provision as Article 7.2 and the issue as "Crossing Wage Levels". There was no Step 4 meeting. On May 9, 1994, the Union appealed the case to National Arbitration, again identifying the applicable contract provision as Article 7.2.


At the arbitration hearing on July 11, 2002, the Union took the position that this grievance does not raise a legitimate national interpretive issue and should be remanded to the region. The Postal Service disagreed. The parties agreed to bifurcation to permit an initial determination to be made as to whether this grievance raises an interpretive issue properly to be resolved at National Arbitration, and, if so, what that issue is.

UNION POSITION

The Union contends that this dispute does not raise a legitimate national interpretive issue. The Union has made clear its position that Article 7 precludes the Postal Service from assigning employees to work in a different wage level based on insufficient work at their level. The Union asserts that its position is based on the direct contractual language in Article 7.2 and is supported by a May 15, 1992 regional arbitration decision by Arbitrator Bernard Cushman in Case No. E7C-2E-C 48567 ("Cushman Award") and other regional awards. The Postal Service, however, has never provided any account of its competing theory as to how and when the contract allows for assignment of craft employees across wage levels and whether insufficient work constitutes such a circumstance. Thus, the U9ion argues, there is no competing interpretive position which is the bare minimum required to establish a legitimate interpretive issue ripe for National Arbitration.

The Union maintains that the Postal Service's assertion at arbitration that its position is that it has the right to assign level 5 and 6 clerks to level 4 work and that there is nothing in the contract that prevents it from doing so, is not meaningful. The Union insists that the contract requires, as a premise to National Arbitration, an explanation of the Postal Service' s refusal to grant the grievance beyond asserting "because we say so". The Postal Service, in the Union's view, must articulate some alternative' theory of the meaning of the explicit language in Article 7 on which the Union relies.


Accordingly, the Union contends that this dispute should be referred back to the region. If the Arbitrator concludes it is inappropriate to do that, the Union requests that he define the issue in dispute so that the parties may develop relevant evidence. In the event the Arbitrator takes the latter course, the Union points out that it has not taken the position that the Postal Service never can assign employees across wage levels. Its position is that the only issue presented in this grievance is whether insufficient work  is a justifiable basis for assignment across wage levels.

POSTAL SERVICE POSITION

The Postal Service insists that there is an interpretive issue to be decided in this case. The grievance protests the assignment of level 5 and 6 clerks to perform level 4 work, stating that:


The Collective Bargaining Agreement (CBA) provides no language for such crossing of wage levels. Article 7.2.B provides for such crossing of occupational groups if in' the same wage level.

The Postal Service takes the position that Article 7.2.B does not prohibit such work assignments unless they are cross-craft assignments. In its view, the~J.an912age in Article 7.2 applies only to work in different crafts. This disagreement as to the meaning of contract language raises an interpretive issue within the scope of National Arbitration.

The Postal Service stresses that the question of what the contract means is not restricted to an analysis of Article 7.2. In particular -- in addition to Article 3 -- Article 25.2 and provisions of the Employee and Labor Relations Manual (ELM) providing for payment of employees in various combinations of jobs are implicated.

The Postal Service asserts that there is no evidence in the record to confirm that insufficient work was the rationale Lehigh Valley management used to shift higher level clerks to lower level work. Even if there were, it insists, the Cushman Award and similar regional decisions do not defeat the Postal Service's claim that there is an interpretive, issue to be decided at National Arbitration. There are regional awards that reach contrary conclusions, and, more importantly, the issue has not been resolved at the National level. Indeed, the Postal Service maintains, the real interpretive issue raised by the Postal Service in this case is whether Arbitrator Cushman's interpretation that intra-craft assignments are within the purview of Article 7 is correct.

The Postal Service points out that in 2000 contract negotiations the Postal Service presented a proposal that the parties clarify that the language in Article 7.2 applies only to work in different crafts, noting that the Union's position to the contrary was in conflict with Article 25, and that the issue was pending National Arbitration. The Union raised no questions regarding this proposal. Moreover, on April 22, 2002 representatives of the Postal Service and the Union entered into an agreement covering a substantial number of other grievances then pending at the National level, which they identified as being similar to the present case. That agreement provides:


The issue in these grievances is whether Article 7.2 is violated when members of the clerk craft are assigned work in different pay levels.

During our discussion, we identified these cases as being similar to Case No. C9OC-1C-C 93018526, which is currently scheduled for arbitration at the national level. Accordingly, we agreed to remand these cases to the parties at Step 3 to be held in abeyance for possible application of any settlement or arbitration award in Case No. C9OC-1C-C- 93018526.

This shows, the Postal Service argues, that the Union understood what the issue was in this case, and reflects the importance of this issue in terms of its general applicability.

FINDINGS

The record in this case is somewhat meager with respect to detailed statements of the parties' respective contractual positions. Yet, the record also reflects that the 'parties seemed to have agreed that this case raises a contractual interpretation issue, and that they had a basic understanding of the nature of their dispute. Otherwise, it is difficult to make sense of their agreements at both the regional and National level to treat this grievance as a representative or lead case.

As initially filed, the grievance does not so much assert a violation of Article 7.2 of the National Agreement as.. claim that the intracraft crossing of wage levels that occurred ~.n this case is not justified by Article 7.2., The grievance further asserts that management's action in this case deprived the affected level 4 clerks of overtime opportunities and circumvented the posting of bid positions to the clerk craft.

Prior to arbitration, the Postal Service did not actually state its position on the record other than to assert at Step 3 that local management was not persuaded by the Union's "oral argument and submitted documentation". The grievance record does not establish that management sought to justify its action on the basis of insufficient work at the higher job levels.
The burden, of course, is on the Union to establish that the Postal Service violated a provision or provisions of the National Agreement by making the disputed assignments. In its appeal to Step 4 and its appeal to National Arbitration the Union cited Article 7.2.  At National Arbitration, moreover, the Union asserted that its position that the Postal Service violated the National Agreement in this case is supported by the direct language of Article 7.2 and by the Cushman Award and other similar regional arbitration decisions.


In the case before Arbitrator Cushman the parties stipulated the issue to be:


Did Management violate the express provisions of Article 7, Section 2 of the Collective Bargaining Agreement on November 10, 1990 and November 15, 1990 when they assigned Level 6 Distribution Clerk-Machine, MPLSM Operators and Level 5 Distribution Clerks to the OCR/BCS area to perform the duties of Level 4 Mail Processor? If so, what shall the remedy be?


In his decision, Arbitrator Cushman stated:

Article 3 of the Agreement, the management rights clause, does afford the Postal Service the right to assign employees but that right is subject to the provisions of the Agreement. The question to be decided is whether Article 7, Sections 2.B and C do restrict the management right to assign so as to preclude the assignments here in dispute.

Arbitrator Cushman went on to reject the Postal Service's position that intra-craft assignments are not within the purview of Article 7. He held that they were. He also rejected the Postal Service's position that even if Article 7 applies, the cross-wage assignments in issue involved a heavy workload/light workload situation and therefore met the criteria contained in Article 7.2.B and C. Arbitrator Cushman concluded:

That contention is without merit. Even where the heavy/light workload criteria of B and C are met as a factual matter there is another express requirement in that the work assigned must be in the same wage level.


In his Award, Arbitrator Cushman stated:

The Postal Service violated Articles [sic] 7 Section 2 of the Agreement on November 10, 1990 and November 15, 1990 when they assigned Level 6 Distribution Clerks-Machine MPLSM Operators and Level 5 Distribution Clerks to the OCR/BCS areas to perform the duties of Level 4 Mail Processor.

In this case, the Postal Service has made clear its view that the finding in the Cushman Award and other similar regional awards that Article 7.2 applies to intra-craft assignments is wrong. As stated at National Arbitration, its position is that, particularly when read in context of other relevant provisions of the National Agreement -- including Articles 3 and 25.2 - -and the ELM, Article 7.2 does not apply to such assignments.

The issue of whether Article 7.2 is violated when clerks in one pay level are assigned to Clerk work in a different pay level also has arisen in other cases that have been brought to Step 4, and the parties have agreed to "remand these cases to the parties at Step 3 to be held in abeyance for possible application of any settlement or arbitration award in [the present case]".

In Case No. HOC-3D-D 8598 (1994), Arbitrator Snow stated:


It is well settled in the relationship between the parties that an interpretive issue exists when the parties differ regarding the meaning of their agreement, rather than merely disagreeing about facts relevant to resolving a dispute. (See, Case No. H4C-3WC 28547, p. 22). This, of course, does not mean that factual issues cannot exist in disputes that involve interpretive issues.

In this case, the Postal Service's position is that Article 7.2 does not apply to intra-craft assignments. The Union clearly disagrees, although it also says it is not taking the position that management never can assign employees across wage levels. Its position appears to be that management must justify an assignment across wage levels, and that Article 7.2 does not permit it to do so on the basis of insufficient work.

Under all of these circumstances, I find that this grievance does raise an interpretive issue of general application for purposes of Article 15.4.D.1 of the 1990-1994 National Agreement  That issue is whether Article 7.2 applies to, and is violated by, intra-craft cross-wage level assignments such as those involved in this grievance.

It may be that the parties have not yet fully fleshed out how they arrive at their "competing definitions" of the meaning of the relevant contractual language, but the issue has been sufficiently defined to permit the parties to present their respective positions in arbitration. Returning this case to the regional level, in my opinion, would not serve the mutual interests of the parties. In view of the lack of a Step 4 meeting, however, I encourage the parties' advocates, to meet prior to resumption of the hearing in this case to discuss their~ respective presentations.

AWARD

The issue of whether Article 7.2 applies to, and is violated by, intracraft cross-wage level assignments such as those involved in this grievance is arbitrable at the National level.



The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case the Postal Service claimed that a grievance had not been filed timely at Step 1.  The arbitrator found that  the Postal Service was unable to demonstrate that a "verbal" extension had not been granted during the time the grievance was being investigated.  His finding was based more on creditability of the witnesses rather than documentary evidence. 

While the outcome in this case was favorable to the Union and that the merits of the case can now be addressed, this case also reveals the importance of acquiring a written extension.  Had it not been for the faulty memory of the manager in this case, the grievance would have been dismissed due to an untimely filing.


Regular Arbitration Panel

Case Number: C94T-1C-C98102168

Arbitrator: Michael E. Zobrak

For the Union: Vance Zimmerman

Award Summary

On May 12,1998, the Postal Service awarded a Material Handling Equipment Operator Level 4 position at the Columbus, Ohio Post Office. The Union did not file a grievance at Step 1 of the grievance procedure disputing the appointment until June 9,1998. The Postal Service's Step 1 designee could not confirm or deny that he had granted verbal extensions, allowing for a timely filing of the grievance. Evidence presented by the Union indicates that a verbal extension was granted until June11, 1998 for the filing of the grievance. The inability of the Step 1 designee to firmly state in a July, 1998 written statement or in testimony given at this hearing that he did not grant verbal extensions greatly reduces the weight that can be given to his testimony. A hearing on the merits of this dispute is hereby ordered.

GRIEVANCE AND QUESTION TO BE RESOLVED

On June 9. 1998, the following grievance (Joint Exhibit 2) was filed at Step 1 of the grievance procedure:

Management has not followed the proper procedures for PER updates(s) during the period when the Materials Handling equipment Operator position was vacant.

The question to be resolved is whether the grievance was filed in a timely manner and is arbitrable.

FACTUAL BACI(GROIJND

On April 2, 1998, the Postal Service posted a Level 5 Maintenance Mechanic position at the Columbus, Ohio P & DC. A Promotion Eligibility Register (PER) dated February 10, 1998 was in effect at that time. On April 14, 1998 John Saunders requested to update the PER to the Material Handler Position. His request for upgrade was approved by notice of April 23, 1998. On April 16, 1998 the Postal Service announced that the position had been awarded through. promotion. to Daniel F. Wallace. After making that announcement, the Postal Service did not immediately backfill vacant positions resulting from Wallace's promotion. Mr. Wallace's former Material Handling Equipment Operator position became vacant on April 25, 1998 when his promotion became effective. The PER in effect was also updated on April 28, 1998 to reflect Wallace's promotion and Saunders' upgrade.

On April 29, 1998, the Postal Service posted the vacant Material Handling Equipment Operators Level 4 position. A Notice of Successful Applicant for the Material Handler Equipment Operator position was posted on May 12, 1998, listing Saunders as the successful applicant. The Union took the position that Saunders was improperly upgraded during the period when the Materials Handling Equipment Operator position was vacant. On June 9, 1998, the Union filed a formal grievance maintaining that the selection of Saunders was in violation of the terms of the National Agreement.

SMO Gregory Calhoun testified that he briefly met with Union Steward James Sokolick at approximately 3:30 p.m. on June 9, 1998 and continued the meeting to June 11, 1998 because Sokolick was scheduled to end his Workday at 4:00 p.m. Calhoun testified that he could not recall meeting with Sokolick on this grievance prior to June 9, 1998 or giving Sokolick a verbal extension of time to file the grievance. When Calhoun completed the PS Form 2608, Grievance Summary Step 1, be checked Box 6 indicating that the grievance was timely at Step 1. Calhoun testified that be misunderstood the intent of Box 6 and by his checking "yes" in Box 6 he was only indicating that be had responded in a timely manner.

On July 1, 1998, Calhoun wrote a statement at the request of the Union. Lu that statement Calhoun maintained that he only extended the hearing on June 9, 1998 to June 11, 1998. He. also stated that he had no bard copy or proof that he had a verbal agreement to extend the Step 1 meeting. He was aware that Sokolick was having problems obtaining information he had requested from Human Resources. Calhoun stated that he bad no memory of whether or not he had granted any extensions except for the period between June 9 to June 111. He further admitted to checking the "yes" box on the PS Form 2608.

Tim Reed, MMO, handled Step 2 of this grievance. He observed that the Union failed to place the date of the incident giving rise to the grievance on the Step 2 grievance form. Reed gave an extensive explanation as to why he believed that the grievance was untimely filed. While he provided several dates on which the grievance could have been filed, be observed even if the date of the incident was determined to be May 12, 1998, the filing was untimely.

Sokolick testified that he was aware that without an extension being agreed to by management, the grievance needed to be tiled by May 26, 1998 to be timely.1 He maintains that, Calhoun granted two extensions the first was until June 4, 1998, because Sokotick had not received the requested information Calhoun, however, was not available on June 4, 1998, A second extension was granted until June 11, 1998. It is Sokolick testimony that no meeting took place on June 11, 1998. He noted that he prepared the Union's Step 1 fact sheet in advance of rue hearing using a computer- and that he typed in the June 11, 1998 date of extension well before the June 9, 1998 meeting.

Robert Gardner was the Union's Chief Steward and Step 2 designee. He also was the person negatively impacted by the determination to grant the promotion to Saunders. lie recalls that Reed .did raise the timeliness issue at Step 2. Because of Ins interest in the outcome of the grievance, Gardner stated that he kept in close contact with Sokolick on the progress in filing the grievance. Gardner submits that the date of violation is May 12, 1998 and that two one-week extensions were granted by Calhoun allowing for a timely grievance being filed on June 12, 1998. According to Gardner the typed Union Step I fact sheet is proof that the extension was verbally granted before the June 9, 1998 meeting.

The instant hearing was bifurcated at the Postal Service's request to resolve the issue of if the grievance was timely filed.

CONTENTIONS OF THE PARTIES

POSTAL SERVICE CONTENTIONS

The Postal Service contends that the grievance was not timely med and should be dismissed. The grievance needed to be filed within 14 days of the May 12, 1998 incident. The Union failed to list the date of incident on its Step 2 appeal. Calhoun met with Sokoick on June 9, 1998 and only extended the time of the meeting by two days. Reed addressed the issue of timeliness at Step 2. The Union's failure to adhere to the time constraints cited in the National Agreement should be considered a waiver by the Union to process the grievance. The Postal Service seeks a finding that the grievance is not arbitrable due to its untimely filing.

UNION CONTENTIONS

The Union takes the position that the grievance is arbitrable. The Postal Service has failed to sustain its affirmative defense that the grievance was untimely filed. Calhoun granted the first extension because he was aware that the Union had not received the information it bad requested. Calhoun could not meet with the Union after the first extension, so a second one-week extension was granted. It must be observed that Calhoun repeatedly stated that he could not recall if he granted a verbal extension. That was the same statement lie made three weeks after the Step 1 meeting. The Union offers that the reason Calhoun has no memory of the extension is that management was upset with his checking the "yes" block on the PS Form 2608 indicating that the grievance was timely. There was no reason to extend the June 9, 1998 meeting, since that meeting took only a few minutes and there was ample time before Sokolick left work. In fact, the extension date of"6/l 1/98" was typed on the Step I Fact Sheet by Sokolick before the handwritten date of "619/98" was placed on that form by Calhoun. The Postal Service has not met its burden of proof to establish that the grievance was untimely flied. The Union's witnesses had specific recall of the details of the meetings, yet Calhoun had only vague recollections. The parties have entered into verbal agreement in the past. The Union requests a hearing on the merits of this grievance.

DISCUSSION AND FINDINGS

The sole issue placed before the arbitrator is was the grievance timely filed. The Postal Service has the burden of proof to establish that the Union failed to process the grievance in a timely manner. The parties appear to be in agreement that May 12, 1998 is the date of the incident. On that date the Postal Service provided notice that it was promoting Saunders to the Material Handling Equipment Operator position. Gardner believed that be had been improperly denied the position. It is concluded that the time for tiling the grievance began to be calculated from that date.

Under the terms of the National Agreement the employee or the Union bad 14 days from the date it became aware of the facts giving rise to the grievance to tile a grievance at Step 1. There is no dispute that the grievance was filed at Step I on June 9, 1998,28 days after the incident giving rise to the grievance. On its 1~ce it would appear that the Postal Service has established a prima facia case that the grievance was untimely flied. At that point the burden of establishing that the grievance was filed in a timely manner shifts to the Union.

The Union maintains that Calhoun gave two verbal extensions, allowing it to file a timely grievance on June 9, 1998. interestingly, Calhoun does not deny granting verbal extensions. He merely cannot remember if he did grant those extensions. Not only could he not testify at this bearing as to if he granted the verbal extensions, but three weeks after the grievance was tiled he could not remember in his written statement if be granted the verbal extensions. Calhoun, however, testified that be was aware that the 'Union had not received information that it had requested. He also marked the PS Form 2608 by checking the box indicating that the grievance was timely. Calhoun's inability to confirm or deny that he granted verbal extensions, as well as his marking the PS Form 2608 that the grievance was timely filed, raises doubts as to the weight that can be assigned to Ms testimony.

The Union offers its Step One Fact Sheet as proof that an extension had been granted until June 11, 1998. Sokolick credibly testified that the Union's Step One Fact Sheet was prepared on a computer before the Step 1 meeting actually took place. The Union points to the fact that the extension date of June 11, 1998 appears typed in on the form that was dated June 9,~ 1998 and initialed by Calhoun. This would indicate that the parties were aware before the June 9, 1998 meeting that an extension had been granted until June11, 1998.

Without Calhoun's clear statement that he denied verbal extensions for the filing of the grievance, the Union's argument that its Step One Fact Step was prepared before the June 9, 1998 meeting and indicates that an extension was granted until June 11, 1998, is given greater weight. Calhoun's failure to recall whether he granted a verbal extension in his statement prepared three weeks after the Step 1 meeting greatly reduces the reliability that can be assigned to all of his testimony. In addition, he did indicate on the PS Form 2608 That the grievance was timely. AU of these factors, when taken together, lead to the conclusion that the merits of the grievance should be heard
.


The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case, after many years of compliance, the Postal Service unilaterally decided not to comply with a locally negotiated agreement arrived at by the local parties regarding the method to be used for selecting Maintenance employees for job related training as defined in Article 38 Section 6 of the National Agreement.  While the arbitrator found some logic to the Postal Service's position regarding the differences between paragraphs 1 and 2 of Article 38 Section 6.A  he nonetheless sustained the Union's grievance.  He found the local settlement was enforceable and could not be unilaterally broken by the Postal Service.  He ruled, "The national agreement gives local parties the authority to negotiate agreements regarding local implementation of contract terms on certain items. It is undisputed that the February, 1995, local memorandum was a valid agreement under Article 30 and has never been negotiated out of existence by the local parties. While the parties agreed to discuss the issue in 2000, and did have such discussions, no mutual agreement was reached. Therefore, the only issue in this case is whether the local memorandum is unenforceable because it conflicts with the national agreement, or for some other reason…….The evidence establishes that the parties have an existing local agreement and practice on the issue of the method of selection for training (the February 1995 agreement). As a remedy for the contract violation the Postal Service shall cease and desist from abrogating and failing to comply with that agreement. Further, those maintenance employees denied training assignments in violation of the terms of the 1995 local agreement must be afforded the opportunity to receive training assignments at the earliest opportunity. "


REGULAR ARBITRATION

Case Number: E98T-1E-C00255717

Arbitrator: John Hayduke

For the Union: Robert Olson

SUMMARY

The postal Service violated Articles 5,15 and 38 of the parties' National Agreement when, on May 18, 2000. it unilaterally abrogated and "rescinded" a pre-existing local memorandum of understanding regarding the selection of maintenance employees for training.

OPINION AND AWARD

The issue in this case is whether the Postal Service violated Articles 5, 30 and 38 of the parties' National Agreement when, on May 18, 2000, it unilaterally abrogated and "rescinded" the pre-existing local memorandum of understanding regarding the method for selection of maintenance employees for training.

The facts of this case are almost entirely undisputed. Article 30 of the parties national agreement provides that local memoranda negotiated by the parties "shall remain in effect" from national contract to national contract unless those agreements are changed by mutual agreement at the local implementation negotiations, or unless the local memoranda are "inconsistent with or vary the terms of' the national agreement.

On February 17. 1995, the local parties at the Spokane, Washington postal facility reached the following local agreement:

FEB 17, 1995

SUBJECT: TO ESTBLISH TRAINING SELECTION POLICY

TO: SPOKANE PLANT MAINTENANCE EMPLOYEES

Future training opportunities will be posted in accordance with 38.6.A.1 of the National Agreement to indicate the occupational group, level and tour where the need for those skills exist. For training requirements, in levels 1 through 7, the training seats will be assigned to the senior qualified volunteer who meets the occupational group, level and tour requirements as posted. For training requirements at levels 8 and 9, the training seats will be assigned to volunteers who meet the occupational group, level and tour requirements as posted. Seniority would take precedence only if more than one employee volunteered from the group, level and tour posted. Training seats will be involuntarily assigned only if sufficient volunteers cannot be found to meet the requirements of the group, level, and tour as posted. Involuntary training assignments will be made on the basis of juniority.

NOTE that this agreement supersedes the agreement dated 2/15/95.

(signature) [signature]
NATALIE G. LOVELASS MICHAEL W. PRIESTLY
MAINTENANCE MANAGER MAINTENANCE CRAFT
DIRECTOR


It is undisputed that that local memorandum was a valid agreement under Article 30 of the national contract. It is also undisputed that the February, ~ memorandum has not been "changed by mutual agreement," as provided for in Article 30

Article 31 .6.A.1 provides in relevant part:

Section 6. Training

A. Maintenance Training

1. All maintenance Craft job training opportunities in levels 1 through 7. will be offered first to the senior qualified volunteer within the occupational group, level and tour where the need for the skills exists.

For maintenance Craft job training in levels 8, 9, and 10 the employee selected will be chosen from among volunteers within the occupational group, level and tour where the need for the skills exist. The Employer may choose not to select a volunteer who has attended training for 6 or more weeks during the previous 12 months.


That same above-quoted contract language has existed unchanged from 1994 to date, i.e. at all times relevant herein.

Past Grievances

The parties agreed to the following summation of the circumstances of the first recent grievance on the issue of the February, 1995, local memorandum:

In February 2000 maintenance management made a selection from a list of volunteers of level 9 Electronic Technicians that was contrary to the February 1995 agreement. Management selected a volunteer who was not the senior volunteer, but who met all of the requirements and prerequisite. A grievance was filed and denied at step I of the grievance procedure stating the reason that the senior volunteer was not selected is because management felt that the senior volunteer would not share his training with other members of his occupational group. The issue was elevated to step 2 where Labor Relations Specialist Mark Beard settled the grievance. He awarded the training billet to the grievant and required management to adhere to the agreement dated February 17, 1995.

In April, 2000, Spokane acting maintenance manager Greg Borden sent the Union the following letter:

April 10, 2000


Lee Beedle
APWU Maintenance Craft Director
Spokane P&DC

Re: MANAGEMENT'S INTENT TO RESCIND AGREEMENT

Lee,

On February 17, 1995 Maintenance Manager Natalie Lovelass and APWU
Maintenance Craft Director Mike Priestly entered into an agreement regarding
how volunteers for training will be selected (copy attached).

I find this agreement to be in violation of the National Agreement Article 38.6 and
therefore must rescind said agreement.

As always, your input is appreciated.

Sincerely,
signature
Greg Borden
Manager, Maintenance (acting)

The Union grieved the matter. The parties met and agreed to settle the matter. Managements written statement of the settlement reads:

Settled - Management and the Union agree to sit down and negotiate on this issue until this is resolved. Management will work under the existing agreement. {Exh. 2, p.30}

As stated above, it is undisputed that no agreement was ever reached between the local parties to alter or rescind the February 17, 1995 local memorandum.

The Present Grievance

In early 2000 Frank Nick became the manager of maintenance at the Spokane facility. On May 18, 2000, Nick sent the Union the following letter:

May 18, 2000

Lee Beedle
APWU Maintenance Craft Director
Spokane P&DC

Re: MANAGEMENT'S INTENT TO RESCIND AGREEMENT

Lee,

On February 17,1995 then Maintenance Manager Natalie Lovelass and then APWU Maintenance Craft Director Mike Priestly entered into an agreement regarding how volunteers for training will be selected. The agreement specifically addresses senior volunteer when awarding training to Maintenance craft employees level 8 & 9.

In April 2000, acting Maintenance Manager Greg Border attended contract training classes and was told by Ray Cox that this particular agreement was in direct conflict with the intent and indeed the very verbiage of the National Agreement. Article 38.6.A.1 identifies choosing a volunteer where the need for the skills exist and specifically does not address the seniority issue. Maintenance training opportunities in levels I through 7 are offered first to the senior qualified volunteer but not levels 8 and 9.

On April 10, 2000 Management issued the Union a letter notifying you of our intention to rescind this agreement and welcomed your input.

Acting Maintenance Manager Greg Borden met with you regarding the notice of recision and agreed to have Labor representative Bob Olson and Management representative Mike Griffin look into the issue to see if some middle ground could be found and after two such meetings no compromise could be reached.

I find this agreement in conflict with the National Agreement Article 38.6 and therefore rescind said agreement effectively immediately.


signature
Frank Nick
Manager, Maintenance



After issuance of that letter the local parties met several times but no agreement was reached.

At arbitration the Postal Service offered evidence and argument that one reason that the local memorandum should not be considered effective is that its terms are no longer practical or efficient under current technology and practices. The Union objected that no such contention or evidence had been advanced during the grievance procedure, as required by Article 15.

The arbitrator must sustain the Union's objection. The documentary evidence shows no such contention made by management during the grievance process and the only witness testifying about the matter, Frank Nick (a very credible witness), could not recall making any such argument, though he stated that 'that was our thought process". In any event, the only evidence regarding that issue was Nick's conclusory testimony that generally, with the new technology used by the Postal Service, the old seniority system for training selection is no longer workable because the most senior employee is no longer always the appropriate one for training. Nick also testified that during the grievance procedure he did "mention to" Union representatives that the use of strict seniority would be inappropriate, for example, in cases where the most senior employee was about to retire or was injured. (It seems to the arbitrator, however, that that problems with a seniority-based selection system would be the same regardless of the state of the technology in use).

Nick testified that one primary argument that he raised during the grievance process was that the 1995 local agreement had been reached between only one Union and one management official. Nick stated his belief that a greater number of people on each party's side and from multiple levels of each organization ("a quorum") should be involved in such negotiations; that has been the case in some, though not all other local agreements. Nick acknowledged at arbitration that he abides by other agreements made under less then Nick's preferred "quorum" conditions.

OPINION

The national agreement gives local parties the authority to negotiate agreements regarding local implementation of contract terms on certain items. It is undisputed that the February, 1995, local memorandum was a valid agreement under Article 30 and has never been negotiated out of existence by the local parties. While the parties agreed to discuss the issue in 2000, and did have such discussions, no mutual agreement was reached.

Therefore, the only issue in this case is whether the local memorandum is unenforceable because it conflicts with the national agreement, or for some other reason.

The Postal Service asserts that the local memorandum is inconsistent with the terms of Article 38.6.A.1. The essence of the Employer's argument is that because the first paragraph of that contract clause (dealing with training selection for job levels 1-7) calls for the use of seniority while the second paragraph (concerning levels 8-10) does not, the national agreement in effect prohibits the use of seniority for levels 8-10, contrary to the local memorandum.

There unquestionably is a difference between the first and second paragraphs of Article 38.6.A.1. It is also clear that the second paragraph does not call for the use of seniority while the first paragraph does. The language of the second paragraph does not, however, prohibit the use of seniority by its express terms. The second paragraph simply does not mention seniority and therefore presumably neither requires nor prohibits the use of seniority in the selection process.

The Postal Service's argument is not wholly without logic or some support in the general principles of contract construction. The Employer's argument, however, asks that a lot be read into the spare words of Article 38.6.A.1. The presence of a call for seniority in the first paragraph and the absence of a mention of seniority in the second paragraph may be a starting point for an argument such as that made by the Postal Service. Additional evidence regarding agreed interpretations or mutually agreed implementations of the provision might bolster the Postal Service's position. Without such evidence, however, this arbitrator is unable to conclude that the second paragraph so clearly manifests an intent to exclude seniority from the training selection process (for levels 8-10) that the parties' longstanding local memorandum should be considered to be in conflict with the national agreement and therefore invalid.

On the basis of the foregoing and the record as a whole the arbitrator concludes that the contract has been breached by the Postal Service as alleged in the grievance. The evidence establishes that the parties have an existing local agreement and practice on the issue of the method of selection for training (the February 1995 agreement). As a remedy for the contract violation the Postal Service shall cease and desist from abrogating and failing to comply with that agreement. Further, those maintenance employees denied training assignments in violation of the terms of the 1995 local agreement must be afforded the opportunity to receive training assignments at the earliest opportunity.


The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case the Postal Service subcontracted the assembly of letter carrier cases.  In sustaining the Union's grievance the arbitrator dismisses the Postal Service's position that the ASM does not cover or permit Maintenance members to perform work that it labels as construction.  He ruled, "Thus, it appears the Service wishes to freely categorize what is construction and what is maintenance interchangeably when it suits the Service's purpose.  The Service can not have it both ways.  To permit such a fluid application of the National Agreement by either party would place the other at a severe disadvantage."

The arbitrator also found that the Postal Service failed to demonstrate that it gave good faith consideration to all the factors in Article 32.  He ruled that, other than the Postal Service offering conclusory statements in support of its decision, the Postal Service failed to produce any evidence to support its verbal statements.


Regular Panel Arbitration

Case Number: E98T-1E-C-01163139

Arbitrator: D. Andrew Winston

For the Union: Idowu Balogun

UNION'S POSITION

The Service violated Article 19 of the National Agreement and ASM § 535.111, which require that "[m]aintenance of postal equipment should be performed by Postal Service personnel, whenever possible." Exceptions spelled out in ASM § 535.111 do not apply in this instance: capable personnel were available; the Service failed to demonstrate that subcontracting was "economically advantageous;" and no prototype or experimental equipment was involved.

The Service failed to consult the Union prior to the subcontracting as required by Article 32.l.B.

The "Article 32 review" or cost analysis was flawed. As demonstrated by Mr. Fortaliza's pay stub, Level 5 Maintenance Mechanics do not earn $31.10 per hour. Rather, they earn $16.15 per hour, thus virtually eliminating any purported cost savings through subcontracting. Furthermore, the budget for the project was exceeded.

Negative inferences should be drawn from the Service's failure to: conduct a cost comparison; present the testimony of the decision maker, Mr. Lightfoot; provide photocopies of invoices and the contract in response to the Union's request for information.

The Service engaged a subcontractor that used unskilled laborers. Bargaining unit employees transported the materials, trained the subcontractors and loaned tools. They should have been scheduled to perform the work.

The Service cannot create the conditions which make the task impossible for employees to perform and use that as a justification for subcontracting. The Service should have commenced assembling of the cases sooner and moved assembled cases to the new station.

The Union asks that the grievance be sustained and that the sum of $3,000 plus interest be distributed to the affected employees.

SERVICE'S POSITION

The Union has not demonstrated a violation of the National Agreement. The Service complied with Article 32.

The Service considered the public interest. It had five (5) days to assemble two hundred (200) letter carrier cases.

The Service considered cost. Article 32 gives the Service the right to subcontract. Article 32 factors only need be considered. Subcontracting does not have to be cheaper than using employees. However, whether Level 5 Mechanics make $31.10 or $16.15 per hour, money was saved by paying the subcontractors $1 1.75 per hour. The National Agreement does not require a cost analysis but one was done.

The Service considered the availability of employees and equipment. All employees were otherwise fully tasked. They could have assembled the cases only at the expense of their regular work.

The Service considered efficiency. Delaying the Mechanics' regular assignments was not in the Service's interest. Preassembling the cases, storing them in a trailer and moving them to the new station was not practical.

The Service does not dispute that qualified employees were available on overtime. However, ASM § 535.111(b) provides the operative exception in this grievance. Furthermore, the National Agreement does not compel the Service to utilize overtime.

This project was new construction, not maintenance work. The Union has failed to demonstrate any harm suffered by the Mechanics. The following constitute new argument by the Union which cannot now be considered: the number and names of available employees; and that employees had to train subcontractors and loan them tools. The Service asks that the grievance be denied in its entirety.

OPINION

Article 32. l A. permits subcontracting by implication. It mandates that the Service "will give due consideration to public interest, cost, efficiency, availability of equipment, and qualification of employees when evaluating the need to subcontract," often referred to as the "Article 32 factors."

ASM § 535.111 places an additional restriction upon the Service's right to subcontract by requiring that "[m]aintenance of postal equipment should be performed by Postal Service personnel, whenever possible," with the following exceptions: "[w]here capable personnel are not available;"

"[w]hen maintenance can be performed by contract and it is economically advantageous;" "[w]hen a piece of equipment is a prototype or experimental model or unusually complex, so that a commercial firm is the only practical source of required maintenance expertise." ASM § 53 5.112  further provides that "[c]ontract service is encouraged for Postal Service-operated facility and plant equipment maintenance, when economically advantageous."

In this grievance, the Union challenges the Service's subcontracting the assembling of two hundred (200) letter carrier cases for the new Cheyenne Mountain Station in Colorado Springs, Colorado.

New Argument

The Service objects that certain arguments put forth by the Union in the arbitration hearing were not raised in the grievance process and cannot now be advanced in support of the grievance.

The Service maintains that the Union revealed for the first time in the hearing the names of ten (10) maintenance employees the Union asserts were available to assemble the letter carrier cases. However, the Union clearly asserted in its Step 2 appeal that "[b]argaining unit employees in the appropriate occupational groups and levels with the proper planning and scheduling would have been available had the Postal Service properly assigned work." Presumably, the Service knows who its maintenance employees are. Therefore, I do not find the Union's list to be new information or new argument.

The Service also argues that the Union's assertion that maintenance employees had to train the subcontractors is new argument. While this detail does not appear in the grievance papers, it was not news to the Service. In fact, the Service's own witness, Mr. Cornwell, testified that he sent at least two (2) and perhaps three (3) maintenance employees to train the subcontractors.

Finally, the Service claims that the Union's allegation that maintenance employees had to loan their tools to the subcontractors is new argument. Indeed, I cannot find any reference to this allegation in the grievance papers and Mr. Cornwell testified that tools were purchased for the subcontractors to use but that he was unaware that any employees had loaned their tools to subcontractors. Hence, this does appear to be new facts or new argument and will not be considered.

Construction v. Maintenance

The Service argues that the project constitutes new construction, not maintenance, and, as such, the Service is not obligated to assign the work to maintenance employees because the National Agreement does not require it. The Service points specifically to ASM § 535.111, which provides that "in [m]aintenance of postal equipment should be performed by Postal Service personnel, whenever possible." (Emphasis supplied.) The Service infers from this provision that it is under no similar obligation to have maintenance employees perform what it calls new construction. I do not find this argument compelling.

There is certainly a distinction between constructing or assembling and maintaining. The primary definition of "construct" is to build, form, or devise by fitting parts or elements together systematically." Webster's New World Dictionary of the American Language (2nd college edition 1976), p. 305. The definition of "assemble" is similar: "to fit or put together the parts of (a machine, etc.)." Id., at 83. In contrast, "maintain" is defined as "to keep in a certain condition or position, esp. of efficiency, good repair, etc.; preserve." Id., at 854.

Strictly speaking, assembling letter carrier cases is just that, and as such, that act is distinguishable from the act of maintaining. At the same time, it is undisputed that maintenance employees have assembled letter carrier cases in the past, signaling that the Service deems such work, work it here defines as new construction, within the maintenance employees' capabilities and, indeed, their duties. Consequently, while assembling letter carrier cases may fall under the definition of "construction" versus that of "maintenance," it has also been defined by the Service as maintenance craft work by virtue of previously tasking maintenance employees with assembling letter carrier cases.'

Furthermore, the Service simultaneously argues that the subcontracting at issue is permitted under the second exception in ASM § 535.111, which permits subcontracting "[w]hen maintenance can be performed by contract and it is economically advantageous." (Emphasis supplied.) The Service also relies upon ASM § 535.112, which provides that "[c]ontract service is encouraged for Postal Service-operated facility and plant equipment maintenance, when economically advantageous." (Emphasis supplied.)

Thus, it appears the Service wishes to freely categorize what is construction and what is maintenance interchangeably when it suits the Service's purpose. The Service cannot have it both ways. To permit such a fluid application of the National Agreement by either party would place the other at a severe disadvantage.

While the Service may profess adherence to a distinction between construction and maintenance in theory (and in arbitrations), in practice it appears no such rigid distinction is recognized. That being the case, I decline to elevate form over substance and deny the grievance based upon a definitional distinction which is inconsistently applied by the Service.

Article 32

The Service insists that it gave due consideration to the Article 32 factors when it subcontracted the assembling of the letter carrier cases. I am not persuaded.

The Service maintains that in considering the public interest, the decision to subcontract was motivated by the fact that it had only five (5) days to assemble two hundred (200) letter carrier cases. I find, however, that the evidence demonstrates the Service's time constraint was artificial and self-imposed.

The Service received delivery of the letter carrier cases well in advance of the opening of the new station. The unrebutted testimony was that the cases sat in the GMF parking lot for up to two (2) months, which begs the question why the cases could not have been assembled during the months leading up to the station opening.

The Service counters that in considering the availability of employees and equipment, it chose to subcontract because all employees were otherwise fully tasked and could have assembled the cases only at the expense of their regular work. However, nothing other than conclusory statements were offered in support of this assertion. The Service did not provide copies of schedules, clock rings or a list of pending assignments. The Service produced no evidence of any other special or unusual competing priorities monopolizing the maintenance employees' time during the period in question. Indeed, the unrebutted testimony from the Union's witnesses was that maintenance employees were not overwhelmed with tasks. There were regular scheduled tasks that were to be performed but the prioritization of these tasks was left to the maintenance employees. Furthermore, little overtime was used in the months leading up to the subcontracting. The fact that maintenance employees asked the Service to be allowed to begin assembling the cases in anticipation of the opening of the new station permits the inference that they had time to perform the work. There was no credible evidence that the assembling of the cases could not have been performed as part of the maintenance employees' regular duties.

The Service had sufficiently skilled and experienced personnel on staff who could have done the work. If assembly of the cases pursuant to a deadline was truly a priority, it should have designated and devoted the necessary personnel. The Service had the power under Article 3 to dedicate however many maintenance employees the Service deemed necessary in order to complete the project on time. The Service also had the right under Article 8.5.G. to compel overtime if necessary.

The Service argues the National Agreement does not compel the Service to utilize overtime. While this is true, it was unclear from the evidence whether overtime would have been necessary.

Finally, and most importantly, assembling letter carrier cases was maintenance craft work, and, presumably, the Service employs maintenance employees for just such purposes, among others. Indeed, the evidence is that they have been so utilized in the past.

The argument that devoting personnel to one project would require taking them off of other regular duty assignments is far from compelling. That will always be the case whether or not the work load gets heavy or a special need arises. Such an excuse could be used by the Service to abdicate its responsibility to plan and schedule according to its needs and to divest the bargaining unit of maintenance craft work on an on-going basis in contravention of the National Agreement. More to the point, assembling letter carrier cases appears to fall within maintenance employee's regular duty assignments, albeit not two hundred cases (200) in five (5) days.

However, the Service cannot claim that the deadline was unforeseen or a surprise and that, therefore, the subcontracting was in response to an emergency situation. The grievance sets the incident date at April 26, 2001. Mr. Cornwell testified that he had only one (1) to two (2) weeks notice that he would have five (5) days to assemble all two hundred (200) letter carrier cases. Yet, he testified that the "Article 32 review" was prepared in March 2001. The bid from the subcontractor to the Service is dated March 23, 2001. Thus, it appears the Service planned to subcontract the work prior to when Mr. Cornwell received notice that he would have five (5) days in which to assemble the cases.

The Service maintains that in considering efficiency, it decided that delaying maintenance employee's regular assignments was not in the Service~ s interest. Furthermore, preassembling the cases, storing them in a trailer and moving them to the new station, as suggested by maintenance employees, was not practical. There are problems with this explanation, as well.

As previously discussed, II find that assembling letter carrier cases constitute part of maintenance employees' regular duty assignments, which it has been the Service's practice to let the maintenance employees prioritize for themselves. Nevertheless, it is perfectly within the Service's managerial discretion to make decisions about what tasks should be performed first and what can be postponed. However, the Service offered no evidence of any competing priorities. That being said, it is also within management's discretion to make determinations of practicality. The Service argues preassembling the cases and storing them in a trailer, as suggested by maintenance employees, would have required displacing and exposing the trailer's contents - Christmas decorations - to the elements, and risking damage to the cases during the move to the new station. I am troubled by the Service's willingness to compel employees to forego work within their craft in order to keep Christmas decorations dry but view the risk of potential damage to equipment a legitimate concern.

The Service's primary concern, and where it expended the most energy during the hearing, was regarding the issue of cost. The Service argues that Article 32 gives it the right to subcontract, and Article 32 factors only need be considered. Subcontracting does not have to be cheaper than using employees. Furthermore, whether Level 5 Mechanics make $31.10 or $16.15 per hour, money was saved by paying the subcontractors $11.75 per hour. Finally, the National Agreement does not require a cost analysis but one was done.

In this respect the Service's defense fails.

In S7T-3 U-C 39310 (Corpus Christi, TX 199Z) (Arbitrator Bennett), the Service subcontracted the modification of letter carrier cases, work that had previously been performed by maintenance employees, citing a deadline and the lack of enough available maintenance employees to meet the deadline. Once the work was subcontracted out, the maintenance employees gave the subcontractors the modification kits they had been using. The subcontractors took nearly six (6) months to complete the project.

Based on a supervisor's testimony, Arbitrator Bennett found that the issue for the Service was cost. Arbitrator Bennett had previously held in S7T-3W-C 27286 (Class Action, St. Petersburg, FL) that arguments regarding cost are in the nature of an affirmative defense, and as the facts regarding the cost of subcontracting are uniquely within the knowledge of management, the burden of proof as to cost lies with the Service. In S7T-3 U-C 39310 (Corpus Christi, TX 1992), the Service provided no evidence concerning cost, precluding a comparison of the cost of subcontracting with that of utilizing maintenance employees. Consequently, Arbitrator Bennett found the Service failed to meet its burden and had violated ASM § 535.111. Id., pp. 2-3.

In this case, the Service similarly failed to sustain its burden with respect to the issue of cost.

The Service's "Article 32 review" was based upon a Postal Service document that indicated a Level 5 Maintenance Mechanic earned $31.10 per hour. This was contradicted by the pay stub of a Level 5 Maintenance Mechanic, which reflected an annual salary of $33,609, translating into an hourly wage of $16.15. Nevertheless, the Service insists that money was saved since the subcontractors were paid
$1 1.75 per hour. However, it was unrebutted that the budget of $3,000 was exceeded. Furthermore, the Service failed to produce the contract or invoices reflecting the total cost of the project.

Therefore, as in the cases before Arbitrator Bennett, no cost comparison can be made, and the Service's argument that subcontracting was economically advantageous and, hence, permitted under Article 32 and ASM § 535.111(b), must fail.

In H4V-NA-C 84, 85, 86 & 87, & H7C-NA-.C 1, 3 & 5 (1992), a case dealing with the contracting of ground transportation of mail, Arbitrator Snow held:


Arbitrator Gamser made clear that factors set forth in Article 32 have not been weighted by the parties. Arbitrator Mittenthal agreed with Arbitrator Gamser that no factor is more important than any other. Each factor must be given due consideration.
The parties have not required that the process of due consideration necessarily produce the most correct decision. As Arbitrator Mittenthal pointed out, the parties have not contractually mandated that the Employer choose the cheapest course of action. On the other hand, the parties have agreed that the Employer will give due consideration to all of the factors set forth in the agreement.

Id, pp. 32-33 (emphasis supplied). Arbitrator Mittenthal's discussion of due consideration in A8-NA-0481 (1981), another case dealing with the contracting of ground transportation of mail, bears repeating:

Unfortunately, the words 'due consideration' are not defined in the National Agreement. Their significance, however, seems clear. They mean that the Postal Service must take into account the five factors mentioned in Paragraph A in determining whether or not to contract out surface transportation work.2 To ignore these factors or to examine them in a cursory fashion in making its decision would be improper. To consider other factors, not found in Paragraph A, would be equally improper. The Postal Service must, in short, make a good faith attempt to evaluate the need for contracting out in terms of the contractual factors. Anything less would fall short of 'due consideration.'
Thus, the Postal Service's obligation relates more to the process by which it arrives at a decision than to the decision itself An incorrect decision does not necessarily mean a violation of Paragraph A. incorrectness does suggest, to some extent at least, a lack of 'due consideration.' But this implication may be overcome by a Management showing that it did in fact give 'due consideration' to the several factors in reaching its decision. The greater the incorrectness, however, the stronger the implication that Management did not meet the 'due consideration' test. Suppose, for instance, that 'cost' is the only factor upon which Management relies in engaging a contractor, that its cost analysis is shown to be plainly in error, and that it would actually have been cheaper for the Postal Service to use its own vehicles and drivers. Under these circumstances, the conclusion would be almost irresistible that Management had not given 'due consideration in arriving at its decision.3


Id, pp. 6-7 (emphasis in original, footnotes omitted).

Mittenthal and Snow teach that due consideration must be given to all five (5) factors enumerated in Article 32. The factors are not weighted. So, for instance, the Service is not necessarily compelled by Article 32 to follow the dictates of cost. The Service can hire a subcontractor even if it is cheaper to have employees perform the work if other Article 32 factors mitigate in favor of subcontracting. However, if the Service's reliance on cost as a factor is demonstrated to be in error, then the factor of cost was not given due consideration. Since Article 32 mandates that all five (5) factors are to be given due consideration, then the failure to give due consideration with respect to any one (1) factor is fatal to the entire due consideration analysis.

Such is the case here. The Service cites and relies upon cost as a factor in deciding to subcontract. It asserts that it gave cost due consideration, as it must under Article 32. However, the Union has credibly demonstrated that the Service's cost analysis was premised on erroneous figures. Level 5 Maintenance Mechanics earn $16.15 per hour, not $31.10. The Service counters that, regardless, money was saved by paying subcontractors $1 1.75 per hour. Unfortunately, in light of the Union's unrebutted evidence that the project exceeded its budget, there is no way to know for sure whether money was indeed saved or not because the Service failed to produce the contract and invoices, which would have shown what the project ultimately cost the Service. The burden with respect to the issue of cost belonged to the Service. The Service failed to meet that burden.

In addition, I agree with the Union that a negative inference should be drawn from the Service's failure to produce the documents uniquely within its possession, custody and control which would have conclusively supported or undermined the Service's due consideration analysis on the  issue of cost. No credible explanation was given for not producing the invoices and contract. Mr. Cornwell testified that he had seen the final figure but could not recall it. From the Service's failure to produce those documents, I can only infer that I was not meant to see them.

Therefore, I am compelled to conclude that the Service failed to give the issue of cost due consideration pursuant to Article 32, and, consequently, its entire Article 32 due consideration analysis was defective.

Conclusion

For all of the foregoing reasons, I find that the Service did not give due consideration to the Article 32 factors, thereby violating Article 32.1.A. and ASM § 535.111, when it subcontracted the assembling of two hundred (200) letter carrier cases destined for the new Cheyenne Mountain Station in Colorado Springs, Colorado.



 

Conducting Annual Safety and Health Inspections

Within the next 30 days, Safety Performance Management at Headquarters is mailing a package to Level 13 and below Post Offices that contains safety and health inspection checklists and instructions for completing a safety inspection. Instructions are provided in the cover letter included in the package. Postmasters/installation heads (PMs/IHs) at those offices, or their designees, must complete a safety and health inspection using the checklist within 30 days of receiving the package. These annual safety and health inspections are required by Article 14 of the National Agreement and further defined in the Employee and Labor Relations Manual, part 824.  One union representative from the local safety and health committee, may participate in the annual inspection of each installation with less than 100 workyears of employment in the regular workforce where the committee exists in the installation being inspected.

The Union representative from the local Safety and Health Committee may participate on the annual inspection of each installation with less than 100 man years of employment in the regular work force, where such Committee exists in the installation being inspected. In those installations that do not have a Safety and Health Committee, the inspector shall afford the opportunity for an APWU bargaining unit employee from that installation to accompany him/her during these inspections.

PMs/IHs must provide a copy of the inspection report to the Union, post a copy for employee review (ELM 824.426), and ensure abatement of all deficiencies in accordance with the instructions. PMs/IHs must also certify completion of the inspection to their servicing safety office.

Safety personnel conducting inspections must be technically competent to recognize and evaluate hazards of the work environment and to suggest specific abatement procedures. They must use inspection checklists, PS Forms 1784A and 1784B, Safety Inspection Forms, that reference current OSHA and other applicable regulations and standards and postal policies.  It is important for Union representatives to not only participate in the Safety Inspection, but to also receive a copy of the results of the inspection and participate as a member of the Abatement Committee, where possible, to ensure that all recognized hazards and unsafe conditions are eliminated.


Gary Kloepfer
National Representative at Large


The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case the Postal Service discharged an employee for allegedly making a threat against anther bargaining unit employee.  The arbitrator correctly relied upon the factor in Metz v. Department of Treasury 780 F.2d 1001 (1986) to determine whether a threat had been made.   He found the decision to discharge was based on the "messenger's story" rather than fact, as such he found management's assessment of a threat to be misplaced.  The arbitrator described the Metz decision in which the Federal Circuit laid out five standards for an Agency to determine whether an employee truly threatened a Supervisor or co-worker. In doing so the Court applied the "reasonable person standard" - words in what is perceived to be a threat are to be given the connotation which a reasonable person would give them. In applying the reasonable person standard, the Court held that the following factors are to be considered:

1. The listener's reactions:
2. The listener's apprehension of harm;
3. The speaker's intent:
4. The conditional nature of the statement:
5 The attendant circumstances

Several of these factors are subjective, but the Court instructed that evidence on these elements (intent and apprehension of fear) be afforded weight. . 


REGULAR REGIONAL ARBITRATION PANEL

Case Number: E98C-lE-D-01247345
           E98C-lE-D-01247440

Arbitrator: John C. Fletcher

For the Union: Willie Mellen

BACKGROUND

Sometime before noon, on July 31, 2001, Cheryl Lang, a Tour 2, Level 6 Express Mail Expediter, mentioned to Leslie Wagner, a Level 5 Window Clerk, that the previous afternoon, Peggy Sue Williams, a Tour 3. Level 6 Express Mail Service Clerk, had made threatening remarks concerning Wagner. Immediately upon hearing this Wagner did nothing. Later, however, Wagner reported what Lang had told her to her husband, a Tour 2 Dock Worker assigned to the Air Mail Facility. M~- Wagner told Mrs. Wagner that she should report the "threat" to Management and if they "wouldn't do anything, report it to the Police." Mrs. Wagner reported the matter to Ronald P. Gustafson, the Manager of the Airport Mail Center, who then asked Wagner and Lang to provide him with written statements, which they did (Mgt. Ex. & 2).

Gustafson, then phoned the APWU Stewards' office in St. Paul and asked that a Union Steward be sent to the Air Mail Center. (At the time he did not advise the Union as to the reason for this request.) Upon the arrival of the Steward, Gustafson summoned Williams to his office, and after asking her if she
desired the presence of a Steward (which she declined) confronted her with the allegations contained in the Lang and Wagner statements. William's denied making the threat Lang attributed to her. When she was asked to write out a statement "concerning the incident," Williams declined to do so.

Gustafson, then summoned Richard L. Weber, Manager Distribution Operations, to his office and instructed him to escort Williams off the premises. Gustafson also contacted the Postal inspection Service about the allegation. The next day, August 1, 2001, Williams was issued an Article 16.7 notice placing her in an off-duty status on "an allegation of a threatening statement you made about a co-worker." Weber was instructed to conduct an investigation into the allegation. After interviewing Lang and Wagner, and meeting with Williams on August 8, 2001,  Weber made a determination that the allegation was credible, and on August 15, 2001, issued Williams with a Notice of Removal on a charge of:

Unacceptable conduct - violation of the Northland District Statefllel2t of Violence and
Inappropriate Behavior in the workplace.

The placement of Williams in an off-duty status and the removal were made the subjects of separate grievances, that were timely processed under Article 15 and appealed to this arbitration.

DISCUSSION

In the arbitration hearing a vast amount of testimony, documentary exhibits, and arguments were presented by both parties concerning a troublesome personnel situation existing in the Twin Cities Air Mail Center. From this evidence and argument, a conclusion is forced upon the Arbitrator that serious personality conflicts are present among several employees of the Air Mail Center that go well beyond petty disagreement among coworkers, and that these conflicts may well have an impact on the mission of the Postal Service. But, contrary to the teachings in Watts v. Indiana, 338 U.S. 49 (52) 1949, that "[t]here comes a point where we should not be ignorant as judges of what we know as men," most of the evidence and argument pertaining to personality conflict within the UNIT are immaterial to a determination in this matter. As the 'judge" in this matter, under well established Postal Service arbitral concepts, our review must be restricted to the specific charges leveled against Williams and not the "material" in the "manifesto" presented to the Union and Management on June 13, 2000. (Jt. Ex.-10)

The Arbitrator simply is not privileged to go beyond the allegation in the 16.7 notice or the charges in the removal notice. Therefore, aside from a determination whether the placement in an off-duty status under Article 16.7 of the Agreement was appropriate in the circumstances existing at the time it occurred. the actual issue before the Arbitrator is whether a threat -was made by Williams, and if made were the "due process" considerations of Article 1 6 followed, and if followed was the discipline of removal appropriate.

As will be explained more fully below; 1), there exist insufficient evidence in this record to establish that Williams uttered the threat that Lang alleges she did; and 2), that even if Williams had made the threat as alleged, the Postal Service failed to conduct an adequate investigation into the incident.

Looking at the circumstances surrounding the alleged threat first, this is a disciplinary matter. In such cases the Postal Service has the burden of establishing that the allegations on which it proceeds to administer discipline are factual. In this matter that burden has not been satisfied. Lang has alleged that she heard Williams say that if Wagner were to be placed on a certain open job that Williams would have to kill her. Williams has denied that she made that statement about Wagner. (She admits, some time previously, to having made, in jest, a similar statement about another employee when discussing a potential bid by that employee with a Supervisor.) Lang has asserted that the statement was made out of hearing of any other employees who were working in the Express Mail Unit at the time. However, three Clerks that were working at the time testified that they were nearby, within hearing distance, at all times that Lang and Williams were together on July 30, 2001, the date that the alleged threat was supposed to have been made. ~All three were certain that Williams did not make the statement that Lang accused her of making "threatening" Wagner. (One mentioned the statement about the 0ylier employee, and acknowledged that she may have been confused as to the date that that statement was made.)

When the testimony of these three witnesses is considered with Lang's conduct immediately subsequent to allegedly hearing the threatening statement, doubt develOP5 that any conversation Williams and Lang were engaged in at the time contained remarks perceived, under the reasonable person standard, to be of a threatening nature. This because, Lang did nothing at the time about any threat, if indeed it was uttered as she said it was. in fact, Lang testified that she did not take what Williams said seriously until she saw how upset Wagner became when she told her about the conversation. (Wagner's reaction to Lang's 'report" will be dealt with in more detail below.)

At tile time that Williams was alleged to have made the threat, Lang did not report what she heard to any Supervisor or Manager (although she testified that she was aware that this should be done when a coworker was threatening another coworker). She did not consider Williams' remarks sufficiently alarming to notify the Police or the inspection Service. It was not until the next morning when she happened upon Wagner, who was visiting the Unit while on her break from her window duties, that the alleged threat was shared with anyone. And then, according to the testimony of both Lang and Wagner, the subject was mentioned only after they had discussed several other matters - being brought up close to the end of Wagner's break, shortly before she was about to return to her Window Clerk duties. Lang's conduct hardly is that of one who actually heard a real threat of one coworker about killing another coworker. Lang's conduct was not typical of that of an employee with an acute awareness of the Service's Policy on violence in the workplace. (A month earlier, as will be discussed below, Lang was involved in the development and signing of a "petition" that extensively dealt with "threats" and the Postal Service's Zero Tolerance Policy as it pertained to the AMC in general and Williams in particular.)

In this record, much has been said about motive. The Service stressed, and the Supervisor issuing the discipline testified, that Lang's allegation was believed because she had no motive to lie, while Williams had considerable motive to deny the allegation because her job was in jeopardy. The facts do not support the Supervisor's conclusions. Notwithstanding Lang's sworn testimony that there had been "no personal conflicts" between her and Williams in the past, and they "had a good working relationship," uncontested evidence was placed before the Arbitrator that the two previously had several serious confrontations, such as Williams "reporting" Lang for illegally parking in the handicap parking spot that William's mother (another Postal employee) legitimately parked in. Also, Lang on June 5, 2001, along with 13 other "Express Mail" employees signed a "petition" asking Management  inter alia to have Williams "removed from our building" on various and sundry allegations.

It is apparent to the Arbitrator, from the above and other elements' of testimony, that Lang simply was not the disinterested bystander that the Service would like to have her cast as. Approximately a month before claiming to hear the threat against Wagner, Lang affixed her name (after participating in certain drafting changes) on a petition seeking to have Williams moved out of the Express Mail Unit. Lang's disinterest in the charge against Williams is highly questionable. Actually, it strains credulity to embrace the notion of her disinterest in this mater.

Lang testified that when the alleged threat was uttered, there -were no other Express Mail employees nearby that could have heard their conversation. Three witnesses testified in considerable detail that they were close by at all times while Lang, who was going off duty, carried on a conversation with Williams, and that Lang did most of the talking, with Williams merely shrugging or responding with an occasional "uh-ha". Management offered nothing to rebut their testimony. While there exists some slight discrepancy between the sworn testimony of these witnesses and statements that they provided to the Union after the incident, the Arbitrator has no basis to disbelieve the testimony of the three witnesses concerning their being within hearing distance of Lang and Williams at the time the threat was supposed to have been uttered. Accordingly, their testimony on this point will be credited. In doing so, then the preponderance of the evidence favors Williams and not Lang as to what was said during their conversation. Lang, it is believed, attempted to conceal from her Supervisors the fact that others were nearby while she was talking with Williams.

Lang testified that she did not realize how serious Williams' remarks were until she witnessed Wagner's reaction. The Arbitrator has serious questions about Lang's stated assessment as to just what Wagner's reaction actually was at the time she heard about the threat. Wagner testified, repeatedly, that when she heard what Williams was supposed to have said, she acted normal, as she didn't want Lang to report to Williams that she was concerned about the remark. Wagner, and individual suffering from epilepsy, stressed that she made great effort to "keep her self under control," and not show any reaction to the comment, because she believed that Lang and Williams were friendly, if Wagner was successful in these efforts, and there is no indication that she wasn't, Lang's testimony that she didn't become aware of the real seriousness of the "threat," until after she saw Wagner's reaction, becomes suspect.

Here's what Wagner wrote on the day of her conversation with Lang:

I talked to Cheryl a little. I told her that I wasn't afraid of her and it would be good for my family, if I worked with my husband cost -wise. The conversation ended there.

There is no indication that Wagner exhibited any special concern at that time that would indicate to Lang that Wagner was seriously concerned about her welfare as a result of Lang's remarks attributed to Williams. Accordingly, Lang's testimony on this point cannot be credited.

But even so, in this matter Lang's assessment, as well as that of Postal Service Supervisors, to Wagner's reaction upon hearing of the alleged threat is misplaced in assessing if an actual threat had been made. Lang was the messenger in this matter. It was her delivery of the "message" that Wagner reacted to, not Wagner's reaction to hearing a threat directly from Williams. Apparently, in what is believed to be an attempt to meet the tests of Metz, Weber stated that one of the reasons that he believed that Williams had made a serious threat was his understanding of Wagner's reaction to the threat, in Metz the Court of Appeals for the Federal Circuit laid out five standards for an Agency to determine whether an employee truly threatened a Supervisor or co-worker. In doing so the Court applied the "reasonable person standard" - words in what is perceived to be a threat are to be given the connotation which a reasonable person would give them. In applying the reasonable person standard, the Court held that the following factors are to be considered:

1. The listener's reactions:
2. The listener's apprehension of harm;
3. The speaker's intent:
4. The conditional nature of the statement:
5 The attendant circumstances

Several of these factors are subjective, but the Court instructed that evidence on these elements (intent and apprehension of fear) be afforded weight. in this matter we have two listener's reactions, Lang's when she claims she heard Williams make a threatening remark, and Wagner's when she heard Lang's comments about the alleged remark. Lang's reaction at the time she claims Williams uttered the threat, without question, seriously fails the initial test of Metz. And Wagner's reaction was not to Williams' comments, but to Wagner's version of these comments, thus, this too would not satisfy the initial test of Metz.

There is no way from review of the material in this record of factually knowing exactly what Lang told Wagner what Williams was supposed to have said. No one else, according to Lang, heard her conversation with Williams. The contents of that conversation were not shared with anyone until sometime the next day when Lang and Wagner were visiting while on Wagner's break. Lang did not write down what she was supposed to have heard until sometime after her conversation with Wagner. Accordingly, Wagner did not react to a threat she heard from Williams, but instead reacted to comments she heard from Lang. which comments (if the actually were made) Lang never took seriously at the time that they were supposed to have been made, comments that Wagner did not exhibit apprehension about when she first heard them. in that the "threat" attributed to Williams could have been fabricated by Lang, or a non-threatening comment uttered by Williams could have been embellished when repeated (not an uncommon occurrence when some individuals report something), Wagner's reaction to Lang's assertions is not an accurate indicator of a "listener's reaction" to a threat, the first Metz test. Accordingly, it was inappropriate for Weber to rely on Wagner's "listener reaction" in concluding that an actual threat had been made.

What the merits of this case boil down to is that Williams has been removed on the unsubstantiated allegation of Lang. In an earlier case J98C-JJ-D 01020907 Champaign, Illinois (2001) involving unsubstantiated threats and alleged violations of the Service's Zero Tolerance Policy ("ZTP") this Arbitrator noted:

It seems that in many situations, under the Service's published ZTP, Management may proceed to removal simply because some one has reported that someone else has made threats that are deemed to be at odds with the Service's ZTP. If these charges are less than bonafide, any disciplinary action is manifestly at odds with just cause principles and due process considerations guaranteed by Article 1 6 of the National Agreement. An employee should not be subject to removal on unsubstantiated charges of absenteeism, nor should they be subject to removal on unsubstantiated charges of theft. The same considerations are required when the charge happens to be threats against a coworker or a Supervisor. And, while allegations of threats may be more difficult to prove than allegations of theft or absenteeism, for example, they still ii1uSt be proven to support discipline. Article 16 of the National Agreement cannot be fairly read in any other way.

Accordingly, in this record there simply is insufficient proof to conclude that Williams' threatened Wagner.

While this case is decided on its merits, the Arbitrator is also concerned with the inadequacy of the Postal Service's investigation into this matter. Management has an obligation to adequately investigate threats of violence in the work place, not only to provide a safe work environment but to ensure that employees and supervisors are not using an allegation of a threat to foster a different agenda. in this matter Weber was told by Gustafson to investigate the situation. The Inspection Service, having declined to get involved, left the matter in the hands of facility supervisors. Weber did not even attempt to interview others who were working nearby at the time, who may have been able to shed some light on the situation. His stated reason before the Arbitrator for not doing so was that Lang had indicated to him that no one else was within hearing range at the time, and that he believed her assertion, It is totally inadequate from an investigative viewpoint to merely rely on assertions from one of the involved parties without any attempt at verification, the situation occurring here. Investigations do not become flawed because too much digging is done and too much information developed. They become flawed because too little digging is done and too little information is developed. This Arbitrator knows of no cases where a disciplinary investigation was the basis of overturning a penalty because it was excessive, but he is aware of scores of cases where discipline was overturned because the investigation was incomplete.

Perhaps, if Weber had interviewed any of the witnesses nearby at the time that Williams was alleged to have made her threatening remarks, he would have concluded that Lang was not being factual when she asserted that no one else was nearby, and this would then have caused him to reassess the credibility he had given her statement. In any event, the investigation was not complete, the discipline was flawed for that reason.

In this matter Management has supported its discipline, in part, on the basis that Williams was unwilling to provide a written statement when she was first interviewed by Gustafson, and a second time when she was interviewed by Weber. Management's apparent "obsession" with Williams reluctance to make a statement, and because "she offered no defense to the allegation," does not, per se, establish guilt or innocence on her part. Williams denied that she made the threatening statement, what more is required? She is not obligated to prove a negative, Management is obligated to prove that she made the statement.

It is patently unfair to expect an employee to provide a written statement offering their version of a threat that the employee insists was never made, and then when they refuse to provide such a statement, to believe that this refusal supports the contention that the threat was indeed made. In law defendants are not obligated to prove their innocence, the State is obligated to establish their guilt. Williams is not obligated to prove that she did not make the statement that Lang said she did, the Postal Service is obligated to prove that she did. That proof is missing here.

Accordingly, on the totality of the record, it must be concluded that the investigation was flawed so as to void any discipline imposed. Moreover, were the investigation not flawed, Management has not established that discipline was warranted on the merits. The grievances will be sustained.

It is ordered that Williams be promptly returned to her former job and that she be compensated for all wage and benefits lost, including interest on lost wages, for the entire time she has been out of service.

AWARD

Management did not have just cause to remove Ms. Peggy Sue Williams on a charge of Unacceptable conduct - violation of the Northland District Statement of Violence and inappropriate Behavior in the workplace. The grievances challenging placement off duty and the removal are sustained.


Gary Kloepfer
National Representative at Large


The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

The issue in this case is the proper remedy for management not staffing the facility in accordance with the requirements of MMO-027-98, Maintenance Work Hour Estimating Guide for All Mechanized Offices.  The original grievance was arbitrated on May 15, 2001 and decision on June 12, 2001.  The arbitrator in the original case found that the Postal Service had violated the contract due to the fact that it had not produced requested documentary evidence during the lower steps of the grievance procedure.  The arbitrator that the Postal Service had obstructed the contractual process for resolving disputes which prevented the Union from performing the role assigned to it, by law and contract.  He then remanded the remedy to the parties.  The parties were unable to reach agreement on the remedy and a “remedy hearing was necessitated for the issue to be finalized.

In finding for the Union, that arbitrator specifically ordered the Postal Service to post the maintenance positions as well as awarding a monetary award.  Of importance is the portion of his award in which the arbitrator explains the rationale for granting a monetary award.  The arbitrator found that “short staffing” imposed some costs and hardships on our members.  For example, under-staffing places a burden on those who are at work to do more work, under greater pressure, than would be true if the operations were fully staffed.  It can also cause the deferral, or even the eliminating, of routine maintenance tasks designed to prevent breakdowns.  If more frequent breakdowns then result, those who are at work face added difficulty and pressure in their work.  Staff shortages also complicate the scheduling of leave, including medical leave for preventive and elective measures.  Finally, for many employees, such staffing shortages impose the risk, or the reality, of additional hours of unwanted overtime.  That can disrupt arrangement for child case and other family responsibilities, and personal schedules for education, recreation, and exercise.

Finally, and just as important, was the arbitrator’s decision that the Postal Service was to make the Union whole by paying to it a sum calculated as the monthly dues and fees routinely required for membership in the local, state and national organizations.


Regular Panel Arbitration

D94T-4D-C-99094107 & 9844
D98T-4D-C-99226492 & 98109

Arbitrator:        Patrick Hardin

For the Union:        Charlie Robbins


SUMMARY OF AWARD

The only issue is the remedy to be provided where, by its actions and omissions, the Postal Service maintained the staffing of maintenance positions at Levels lower than those required under the Agreement and various incorporated manuals. The Postal Service is directed to fill 3 vacant positions and provide compensation to the Union and to certain employees adversely affected by those vacancies.

ISSUE

What shall be the remedy for the violations found by the Arbitrator?

FACTS

Union steward William Whalen filed the first of these two related grievances in November, 1998. That grievance alleged a general failure to comply with maintenance staffing requirements established by the Administrative Support Manual (ASM) 530 and the Maintenance Management Order 28-97, Maintenance Work Hour Estimating Guide for All Mechanized Offices (MMO). That document apparently discloses the detailed inventory of, and maintenance schedule for, all equipment under maintenance at each facility. On November 9, 1998, three days before the Step One meeting, Mr. Whalen requested from Management a copy of the current MMO covering the Wilmington Post Office. The document was never delivered to the Union, although Management did disclose a 4-page summary of the results of a staffing review that was performed by Management ostensibly using the MMO.

Mr. Whalen met with supervisor Francine Shields at Step One on November 12- Ms. Shields did not answer the grievance and the Union advanced it to Step Two unanswered The patties did not schedule a meeting at Step Two, and Management did not provide a Step Two answer. The Union advanced the matter to Step 3, again unanswered.

The related grievance filed May 5, 1999, alleged failure by the Service to post and. fill vacant positions and to promote to vacant positions from the promotion eligibility register as required by the Agreement. At an early stage the Union requested disclosure of documents including transfer requests, In-Service Registers, and Out-of-Service Registers. Management responded that the requested documents were unavailable, and they were not disclosed. As in the earlier grievance, Management did riot meet with the Union at Step Two and did not answer the grievance at that step.

My Award of June 12,2001, sustained the grievances on the specific ground that the failure or refusal of the Postal Service to make the requested disclosures, or to meet at Step 2 and answer the grievance at that step, had obstructed the contractual process for resolving disputes and prevented the Union from performing the role assigned to it, by law and contract, in that process. The Summary of Award recited:

These grievances alleged: (1) that by its actions and omissions the Postal Service maintained the staffing of maintenance positions at levels lower than those required under the Agreement and various incorporated manuals; (2) that the Union timely requested information essential to the processing of the grievances, but the information was withheld by the Service without explanation; and (3) that the Service did not conduct any hearing or issue any answer to the grievances at Step Two. The Postal Service did not contest allegations (2) or (3), and the grievances are sustained on those grounds.

As I had urged at the hearing on May 15, 2001, the parties met thereafter to attempt to negotiate a remedy by agreement. The parties were unable to compose their differences, however, and brought the matter back before me for final and binding resolution as provided in the National Agreement

POSITION OF THE AMERICAN POSTAL WORKERS UNION

The Postal Service should fill the three maintenance positions that the parties agree are now vacant and provided for in the staffing plan, and a fourth custodial maintenance position at the Dogwood Station, and make whole the employees in the affected jobs by payment to them of sums computed from the number of hour that would have been worked in positions authori2ed but unfilled in violation of the National Agreement. The Union estimates that, so calculated, the compensatory sum will approximate $650,000.

POSITION OF THE POSTAL SERVICE

Even if the arbitrator deems that some remedy is appropriate, the monetary remedy sought by the Union should not be allowed. The monetary remedy would be in the nature of a fine or penalty and, as such, is beyond the remedial power of the arbitrator to impose. Such. a remedy would also constitute a total windfall to most recipients because it would take the form of pay for tune not work or compensation for injuries not suffered. Moreover, no remedy of any kind is justified with respect to the Dogwood Station for the most recent staffing plan properly shows that the custodial maintenance work there has been contracted.

ANALYSIS AND CONCLUSIONS

1.    My Award of June 12, 2001, was not the first finding that the managers of the Wilmington, North Carolina, Post Office had violated the National Agreement by failing to maintain mandated levels of maintenance staffing. On February 24, 1997, my eminent colleague the late Bernard Cushman ruled that such a violation arose from the failure of those managers to maintain the custodial maintenance staffing levels required by the MS-47 Handbook, and related regulations. On July 3, 2000, arbitrator Joseph Sickles issued an award ruling that the Wilmington Post Office had failed to comply with the Cushman award and imposing a monetary remedy that led to the payment of about $70,000 to certain employees. A remnant of the issues considered by arbitrators Cushman and Sickles persists in this dispute insofar as the Union claims, and the Postal Service denies, that the remedy here should direct the Postal Service to terminate the contract at Dogwood Station and assign that work to a bargaining unit employee.

2.     The parties agree that the current staffing plan, as evidenced by an October 23, 1998, memo from the Regional Manager of Maintenance Support, Mr. Pharo includes three positions not filled, one electronics technician, level 9, and two maintenance mechanics, level 5. The award will direct that those positions be filled and will provide an incentive to Management to do so promptly.

3.     The Award will provide no remedy with regard to the Dogwood Station. If, as the Union contends, the Postal Service is in violation of the Cushman and Sickles awards by failing to restore that work to an additional position staffed by bargaining unit employees, it may seek to enforce those awards through a judicial proceeding. This grievance rests, primarily on the staffing levels articulated in the Pharo memo. That memo does not authorize a custodial position at Dogwood Station Rather, as the Postal Service contends, the memo consigns the custodial maintenance duties at that location to a contractor. If, as the Union asserts, the contracting out of that work violated the parties’ negotiated provisions (including die National Agreement) concerning the contracting of maintenance tasks, the Union may commence a grievance so alleging, as such violations are widely deemed to be continuing ones. That was not the thrust of either of these grievances, and there is no timely allegation to that effect in this proceeding.
4. I have often expressed my reluctance to grant monetary relief in cases like this one.  Last year, in a similar case from Asheville, North Carolina, I wrote:

The Union also requested a monetary award to those adversely affected by the depressed staffing levels. But the nature of any monetary harm to that group. However it may be defined, is hard to ascertain. Indeed, if the low staffing levels gave rise to any overtime opportunities, some, at least, of the employees would have regarded them as beneficial rather than burdensome. I am always uneasy about remedies that provide a windfall to those who were not detectably harmed by the wrong to be remedied. Neither is there is any claim or evidence here of bad faith. The Union did not complain about the current staffing level, so far as this record shows, until it had been in place three years. The grievance was preceded by discussions apparently conducted in good faith. The grievance was promptly handled, despite a delay at Step 2, but that may have been caused only by a misunderstanding. For these reasons, arid the quite different ones explained below, no monetary remedy will be provided. [No. D94T-1D-C 99081949, June 8, 2001 (Class Action, Asheville, NC), p. 6.]

In this matter, of course, the Postal Service is unable to say that it responded to the   grievance by prompt cooperation with the Union. For that reason, some of the other difficulties with monetary relief deserve a closer look here than was warranted in the Asheville matter. Thus, even if the short staffing at Wilmington actually generated earnings opportunities, rather their  monetary losses, for most members of the bargaining unit the short staffing did impose some costs and hardships on the employees. For example, under-staffing places a burden on those who axe at work to do more work, under greater pressure, than would be true if the operations were fully staffed. It can also cause the deferral, or even the elimination, of routine maintenance tasks designed to prevent breakdowns. If more frequent breakdowns then result, those who are at work face added difficulty and pressure in their work. Staff shortages also complicate the scheduling of leave, including medical leave for preventive and elective measures. Finally, for many employees, such staffing shortages impose the risk, or the reality, of additional hours of unwanted overtime. That can disrupt arrangements for child care and other family responsibilities, and personal schedules for education, recreation, and exercise.

In my view, the proper measure of a monetary remedy in a case like this should not center on the question: “How much money did the Postal Service save by refusing to staff to the mandated level?” Answers to that question lead in the direction of a penalty against the Postal Service for its wrongdoing. Nothing in the National Agreement suggests that arbitrators have the power to impose fines, or that such fines should be paid to employees whose injuries are disproportionally small when compared to the sums that the Union claims for them. Rather, the proper question is “How do we make whole the adversely affected employees for the harm that was actually done to them?” The answers to that question lead in the direction of a corrective and restorative remedy for the benefit of those actually harmed by the wrongdoing. The hours not worked by non-existent colleagues has some, but not very much, relevance to that question, and I decline the Union’s invitation to use that datum as the sole measure of the proper remedy. I also decline the Union’s invitation to extend the period of the remedy beyond a date 15 days before the filing of the grievance. Even if the arbitrator has the authority to go behind the date of  the grievance for remedial purposes, there is no showing of a compelling need to do so in this case.

Finally, the Union itself was harmed by the violation. If the Postal Service had promptly filled all of the positions authorized in October. 1998, its ranks would likely have been increased, and its dues receipts, as well. And it would not have incurred the costs of this proceeding. The award will make the Union whole.

AWARD

The grievance having previously been sustained, the following remedy is awarded:

1.    The Postal Service shall cease and desist from failing or refusing to implement and maintain the maintenance staffing levels required by applicable provisions of the National Agreement between the parties and incorporated manuals and handbooks;

2.    The Postal Service shall post arid fill one level 9 electronics technician position and two level 5 maintenance positions, in accordance with the stipulation of vacancies made by the parties at the hearing;

3.    The Postal Service shall make whole the employees adversely affected by its violation of the National Agreement by paying to each maintenance craft employee employed at level 5 and above in the bargaining unit at Wilmington during the period commencing November 1, 1998, and continuing until it shall have complied with Paragraph 2, above, the stun of $100.00 for each such month or part thereof; and

4.    The Postal Service shall make the Union whole by paying to it a sum calculated as the monthly dues and fees routinely required for membership in the local, state, and national organizations that would have been paid by three members at Wilmington during the period commencing on November 1, 1998, and continuing until it shall have complied with Paragraph 2 above.

In all other respects, the remedy requested by the Union is denied.


Gary Kloepfer
National Representative at Large


The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case management did not properly notify the grievant , who was on sick leave on day of the posting of the Notice of Intent, of a vacant Preferred Duty Assignment.  In this case, local management mailed the Notice of Intent to the grievant’s home on the fifth day of the seven day posting period.  The arbitrator found that this action effectively prevented the grievant from bidding as he was prevented from amending his Preferred Assignment Selection Form in order to modify the Preferred Assignment Register. The arbitrator awarded the grievant the position and compensated him with out-of-schedule premium for all hours worked outside of and instead of the hours he should have worked.


REGULAR REGIONAL ARBITRATION

Case Number:    E9BT-1E-C- 00127655

Arbitrator:        Susan I Broyles
For the Union:    ldowu Balogun

Award Summary

Issue:    Did the local management violate the 1998-2000 Collective Bargaining Agreement Article 38 when grievant was not properly notified about vacancy number 8977296 while he was on a extended sick leave? If so what shall the remedy be?

The grievance is sustained. Given the facts in this case, mailing a notice of a job posting on February 22, 2000 to Taylor who is on sick leave due to surgery and requiring a bid response by 2:00 p.m. on February 25, 2000, effectively foreclosed Taylor from the bid process. The Service’s arguments relating to Taylor’s filing of his grievance and timing are without merit. Job number 8977296 shall be awarded retroactively from March 11, 2000 through October 20, 2000. Grievant shall receive out of schedule premium pay for all hours and days off worked by the grievant outside the awarded bid assignment.

DISCUSSION:

A hearing was held in this case on June 19, 2002. The parties did not call any witnesses, essentially stipulating to the material facts. Joint Exhibits 1 through 5 were submitted at the hearing. The Union requested that the hearing be held open for a period of seven (7) days within which to submit prior arbitration awards and submitted three prior awards. The Postal Service was granted the same opportunity and by letter dated June 21, 2002 elected to stand on its position as stated at the hearing on June 19. 2002. at the Denver BMC, and does not find it necessary to submit case cites. The following summary is based upon the stipulations and exhibits in the record.

This grievance dates back to the year 2000. The grievant, Scott Taylor. has been with the Postal Service for approximately 23 years. At the time of this grievance, Taylor was a Level 3 Custodian assigned to a Tour 3 Job (2:00 p.m. to 10:30 p.m.) with Saturday and Sunday as days off.

From February 11, 2000 to March 21, 2000, Taylor was on sick leave status due to surgery on February 11 2000 for retinal detachment of the left eye. During this sick leave period on February 18, 2000, Job Number B977296 was posted. Pursuant to Article 38.5A and 38.5.B, Taylor was eligible to bid for this job which was a Custodian Level 4 on the day shift (6.00 a.m. to 2:30 p.m.) with Wednesday and Thursday as days off. The closing date tO bid for this job was February 26, 2000, at 2:00 p.m.

Pursuant to Article 38.4.A. the Postal Service mailed notification to the grievant of this job on February 22, 2000. The parties’ positions hinge on the day of this notice.

THE UNION’S POSITION

It is undisputed trial the Postal Service mailed notification of Job Number 8977296 to the grievant on February 22, 2000. The Union contends that The Postal Service was obligated under the terms of the Collective Bargaining Agreement to mail notice of the job posting to the grievant on February 18, 2000, or the same date the Service posted the job. “The union contends that the Agency had an obligation to notify the grievant in writing allowing the same length of time as the seven days of Posting.” Since the Postal Service did not mail the notice to the grievant until February 22, 2000. or some five days later. [t]he Union contends that Agency notification was late, improper and perfunctory at best. Assuming that the grievant received the mail two to three days after February 22, 2000. Union maintains that is not enough time for the grievant to fill out the preferred assignment / promotion  eligibility form and return it to the Agency by February 25, 2000 at 2pm required deadline.” The Union points out that the job was awarded to a Phillip Smith effective March 11, 2000, and that Smith is “many years junior to the grievant.

The Union requests that Job Number 8977296 be awarded retroactively from March 11, 2000 through October 20, 2000 (Taylor received the promotion to Level 4 Custodian on October 21. 2000) ‘~with out of schedule premium pay for all hours and days off worked by the grievant outside the awarded bid assignment and to be made whole at the Federal Judgment rate of interest.

POSTAL SERVICE POSITION

The Postal Service contends that this is a simple case. Basically that grievant did not bid on a job and he was not awarded the job. The Service contends that even though the notice of the posting was not mailed to the grievant until February 22, 2000, that [w]ith mailing time, the grievant had the bid notice approximately two days prior to the closing date and did not submit a bid.”

Based on this argument. the Service contends that the grievant "knew" the bid closed on February 25, 2000. If he did not have time or the ability to bid on me jab, this grievance should have been filed On that issue, with the date of incident as February 25. Instead, the grievant sat on his rights and did not file the grievance until March 3, 2000. the date of the award notice. The grievant then received the bids and failed to complete and submit his preference for the subject position. Rather than immediately raise the issue that he wasn’t allowed time to submit his bid, he waited until the position was awarded, then filed a grievance.

The Service further argues that the Union’s request for out of schedule premium pay “is inappropriate and outside the bounds of the National Agreement” pointing out that Section 434.621 of the Employee and Labor Relations Manual states in applicable part, ...those employees who are eligible to receive out—of-schedule premium while working a qualifying temporary schedule within a bargaining unit. -.“‘ The Service argues that the grievant ‘did not bid the job, and therefore, was not eligible for or entitled to the job lie was not working a temporary schedule, as he was working the schedule of the last position that he bid for.’

The Service requests that the grievance ~e denied in its entirety.

FINDINGS AND CONCLUSIONS

Article 38.4.A clearly provides that an employee on sick leave on the day of posting shall be furnished a copy of any applicable notice of intent. Taylor was absent on February 18, 2000, the day of posting of Job Number 8977296. Since he was on sick leave, the Service had an obligation under the terms of the parties’ contract to notify him of the posting. The Service notified Taylor of the posting but not until five days after the posting. i.e. February 22, 2000, If Taylor received the notice on February 23. 2000, he had approximately two clays within which to fill out the preferred assignment/promotion eligibility form and return it to the Service by 2:00 p.m. on February 25, 2000.

In my view this is not what the language of Article 38, Section 4A says. Notice in order to be considered notice has to be made in a manner that allows the appropriate action within the time specified by the one notified. In this case and given these facts, mailing a notice of a job posting on February 22, 2000 to Taylor who is on sick leave due to surgery and requiring a bid response by 2:00 p.m. on February 25. 2000, effectively foreclosed Taylor from the bid process. The Service’s arguments relating to Taylor’s filing of his grievance and timing are without merit. The fact that Taylor took six to seven days from February 25, 2000 before filing his grievance is not an unreasonable lapse of time.

Turning to the remedy requested, I find that had the Service properly notified Taylor of Job Number 8977296 he would have had time to bid the job. Had he bid the job, he would have received it due to seniority. Since he did not receive proper notice and therefore did not bid the job, he was, in fact, working outside of what should have been his regularly scheduled tour. As Arbitrator Susan Berk stated in Case #E7T-2B-C 26876 (1995) and which language aptly applies here: (T]he grievant was deprived of a promotion to which he was contractually entitled and as a result worked outside of, and instead of, the tour to which he should have been assigned....’ Here, Taylor was deprived of a promotion to a Level 4 Custodian effective March 11, 2000. As a result he worked outside of, and instead of, the tour to which he should have been assigned. Based on This finding, I conclude that out of schedule premium pay is appropriate commencing March 11. 2000 and continuing through October 20, 2000.

AWARD

The grievance is sustained. Job number 8977296 shall be awarded retroactively from March 11, 2000 through October 20, 2000. Grievant shall receive out of schedule premium pay for all hours and days off worked by the grievant outside the awarded bid assignment.


Gary Kloepfer
National Representative at Large


The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case the Postal Service subcontracted the cleaning services at an Associate Office under the conditions of the 1990 cleaning service memorandum.  The Postal Service reverted a vacant custodial position in accordance with Article 38 Section 4.A.2 and 3, however, it failed to rely on the current approved staffing package when the decision to subcontract was made.  The arbitrator found that the Postal Service’s reliance on a future staffing package as a basis for its withholding decision was improper.  The arbitrator also correctly ruled that management was prohibited from submitting documents in arbitration that it had in its possession at steps 1, 2 and 3, but did not provide to the Union.  In this regard he relied upon National Arbitrator Aaron and Regional Arbitration Gudenberg (B90T-4B-C-95028404).  Finally, the arbitrator ruled that even if management had supplied the information during the lower steps of the grievance procedure, it was still in violation of the Agreement in that management did not follow the sequential steps contained in the Cleaning Services Memorandum.

REGULAR ARBITRATION PANEL

Arbitrator:    Michael J. Pecklers
For the Union:      William LaSalle   
Case Number:    B90T-4B-C 95025965

AWARD SUMMARY

The grievance is sustained. The Union has established by a preponderance of the credible evidence that the Postal Service violated Articles 19, 38 and the MOU on Subcontracting of the National Agreement, when they failed to post and fill a custodial vacancy at the Norwich, N.Y. facility. The relief more particularly set award, shall therefore be implemented immediately

ISSUE

Did the Postal Service violate the Agreement when they failed to post and fill a custodial vacancy, occurring October 28, 1994 at the Norwich, N.Y.  facility, and if so, what shall be the remedy?

STIPULATIONS ENTERED INTO BY PARTIES

•    Except for the LMOU, the relevant language of Article 38 in the 1998-2000 National Agreement has not changed;

•    All Union Requests For Information were received by the USPS;

•    Postmaster Chesna received the December 22, 1994 Request For Information, which was entered into evidence as Exhibit U-2.

completed before proceeding to determine frequency of performance and staffing levels. The three step procedure should be reviewed and recalculated at least annually so that required staffing adjustments will be implemented. 

PRELIMINARY & PROCEDURAL CONSIDERATIONS

The Step1 in the instant class action dispute was held on December 6, 1994, with Postmaster Sharon Harris, and Steward Alternate Joseph Ritz, in attendance. The Postmaster denied the same on December 14, 1994. The grievance was moved to Step 2 on December 22, 1994, when the STEP 2 GRIEVANCE APPEAL FORM was filed by the Union with USPS Step 2 Designee Joseph Chesna. This charged an improper job reversion, and alleged a violation of Articles 19 (MS-47 & EL-921) and 38.

The attached detailed statement of facts provided in pertinent part:

[o]n October 28, 1994 the Fireman-Laborer position in Norwich, New York became vacant. The Union received notice by way of a postal routing slip (Item 0-13) dated 12/1/94 that since local management could not fill the position within 30 days, per the CBA, they would just revert the position.

Article 38.4.A.2 states ‘All vacant duty assignments shall be posted by notice of intent within 30 days from when the vacancy occurs. If a duty assignment has not been posted within 30 days, the installation head or designee shall advise the Union in writing as to the reasons the duty assignment is being withheld.’

Article 38.4.A.3 states ‘If the vacant duty assignment is reverted, a notice shall be posted within 10 days advising of the action taken and the reasons therefore.

The Union contends that the vacant duty assignment was not reverted within 10 days of the vacancy and that the duty assignment was not posted for bid within 30 days of the vacancy. The Union also contends that the reason for not posting and the untimely reversion was due to forces placed on local management by the Area office. In her Step 1 answer, Postmaster Harris states that she was told by ‘Albany’ that the standard answer for this type grievance was ‘Local management cannot fill positions without approval from the Region.’ The Union contends this to be a violation of Article 19 ‘Handbooks and Manuals,’ specifically the MS-47 ‘Housekeeping - Postal Facilities,’ which in its Chapter 1 introduction states: * * * *

The Union also contends that there is a violation of the EL-921 ‘Supervisor’s Guide to Handling Grievances.’ Page 4 of the EL-921 states ‘It is the responsibility of local management to resolve as many grievances as possible at Step 1. ‘~ * * *

Along with its Step 1 appeal to management the Union also requested information concerning past and ongoing staffing surveys done for the Norwich facility. To date, no information has been offered the Union. The Union is once again asking for that information from the Step 2 management designee.

The corrective action requested by the Union included:

[s]taff the Norwich Office with a career Fireman-Laborer immediately or pay at the rate of 8 hours per day, Level 4 Step 0, for every day the position remains vacant in Norwich, New York. Payment to begin to accumulate 90 days from the original date of the vacancy (October 28, 1994). Pay to be awarded to the Binghampton, New York Area Local, APWU, and re-distributed by the Local to employees of the Norwich Post Office who are represented by the APWU.

On January 12, 1995, the Step 2 meeting took place between Postmaster Chesna and Steward Ritz. By letter to Mr. Ritz dated that same date, Mr. Chesna denied the grievance at that level, stating: “[t]his grievance is denied based upon the Area Level decision not to fill this full-time position. If you have any questions, please feel free to contact me at

****~“ The Step 3 GRIEVANCE APPEAL FORM with additions and corrections was filed on January 20, 1995. These initially memorialized the parties’ agreement to extend time limits for the Step 2 and that the correct title for the position in question was “Building Maintenance Custodian, Level 4.”

On November 17, 1995, the Union moved the case to arbitration, pursuant to Article 15, Sections 2 and 4. APWU National Business Agent Doug Mirowski wrote to Local President Charles Lewis on November 20, 1995, explaining that the grievance had been appealed without the benefit of a Step 3 decision letter, “due to the extended period of time since it was discussed at Step 3.” A Step 3 decision letter ultimately was issued by Labor Relations Specialist Martin Rothbaum on December 8, 1995. This was addressed to NBA Mirowski and stated in relevant part:

[o]n December 7, 1995, we met to discuss the above captioned grievance at Step 3 of our contractual grievance procedure.

The grievance pertains to an alleged violation of Articles 19 and 38 of the National Agreement. The Union contends that management violated the above listed articles when they failed to fill a custodial position in Norwich, NY. Upon full discussion and consideration of this matter, it is determined that the grievance is denied.

It was management’s position that there was no violation of the National Agreement. During our discussion you were advised that the issue in the case is does the Postal Service need a custodian in Norwich, NY. The evaluation made in January 1995 says it does not need a custodian. Since Norwich, NY had one custodian there was no one to immediately take the vacant position. Rather than hiring a custodian the evaluation of the need for one was first priority. There has been no showing the evaluation was incorrect. I have asked the labor relations people to forward you a copy of the evaluation.

POSITION OF THE PARTIES

The American Postal Workers Union

The Union asserts that the facts herein are not in dispute. On October 28, 1994, a custodial vacancy occurred. The Postal Service did not post or fill the vacancy. A timely grievance was filed, and the Union believes the Postal Service violated Article 19, and the MS-47, 116, which is incorporated by reference into it. Custodial staffing levels are developed by application of the formulas in this handbook, and this fact is not in dispute. One of the many arbitrators who has reinforced this is Arbitrator Blackwell in Case C87T-1C-C90006204 (July 13, 1996). Paragraph 116 addresses the employer’s obligation to maintain the custodial staffing levels determined by the MS-47 calculations. This also is not in dispute, and was addressed in the Blackwell award.

The parties have addressed this at the National level in Settlement Agreement H7T-3A-C8445, when they stated: “[t]he parties at this level agree that part 116 of the MS-47 applies: ‘Once a custodial staffing level is determined using the procedures in this handbook, that staffing level must be maintained. If conditions arise that warrant a change in staffing, the entire staffing procedure must be redone, i.e. new forms must be completed.”’ The local impact of~J1 16 is also understood by the parties, as Arbitrator Talmadge so ruled in Case N7T-1 W-C7 175 (December 3, 1991).

The Union also believes that Article 38 was violated. Article 38.4.A.2 and 38.4.A.3 cover posting, filling, and/or reverting of vacant Maintenance craft positions. Having established that a vacant position exists at the Norwich facility, my attention is then directed to Article 38.4.A.2, which requires the Employer to post all vacant duty assignments for bid among eligible employees. The arbitration authorities included with the Union’s brief show that where arbitrators found a violation of the MS-47, section 116 and the MOU on subcontracting, they invariably found a concurrent violation of the posting and bidding provisions of Article 38.

In showing that a full-time custodial position existed in Norwich, was vacated, and not filled, the Union argues that it has made a prima facie case establishing a violation of Articles 19, 38 and the MS-47. It relies upon the reasoning of Arbitrator Aisenberg in Case No. WOT-5F-C9673 (June 19, 1996), in support of this conclusion.

Notwithstanding the mandate of  116, the Union notes that testimony at the hearing revealed that custodial vacancies may not need to be filled under certain, limited circumstances. While not offered during the earlier steps of the grievance procedure, Management’s witness testified that the custodial work was subsequently subcontracted. The conditions necessary to let a subcontract are contained in the Memorandum of Understanding on Subcontracting Cleaning Services, in the 1990-1994 contract. There was not an existing subcontract in place at Norwich, so subsection (c) does not apply. ASM 535.261 (a) and (b) would apply, and establish two (2) preconditions. Initially, the vacancy must be caused by voluntary attrition, and equally as important, the facility must have less than thirty-nine (39) work hours per week of custodial work. The burden now shifts to the Postal Service to establish that these conditions precedent existed, and that the sequential actions outlined in the MOU were followed prior to making a decision to replace a career employee with a subcontractor. It has failed to do so.

The Union additionally contends that there are a number of significant due process violations, including Article 15, Section 2, Step 1(b); Article 15, Section 2, Step 2(d); and Article 31.3. At Step 1, the supervisor did not have the authority to settle the case. There also was a willful failure to comply with requests for information. Information is at the heart of this dispute, and the Union was severely prejudiced by not receiving the information pursuant to Articles 15 & 31.

Insomuch as it was unrefuted that a Norwich employee held a full-time custodial position for years preceding the attrition, the Union had a legitimate concern about the thirty-nine (39) work hours precondition. In response to that concern, the Union made numerous requests for Norwich custodial staffing information. These documents would show the total custodial work hours, and are required to be completed by the MOU and the MS-47, Section 116, before the decision to subcontract is made.

Amazingly, the Union was denied access to this information. Notice should also be taken that it was stipulated that the requests for information were received by the Postal Service. According to the contract, and all arbitration protocols, the exchange of relevant information and full disclosure is absolutely necessary. One of the many authorities on this point is the award of Arbitrator Rimmel in Case No. K94T-1K-C9701 1531 (February 14, 2001), where he limited the Service’s defense to those issues raised in the earlier steps of the grievance procedure. Notwithstanding the Union’s strenuous objections to the new evidence, preliminary examination of Management Exhibit #2 seems to support the Union’s position on the merits of the case, as the approved and reviewed PS Form 4852 that was in effect when the decision was made to revert the vacant custodial position shows in excess of thirty-nine (39) work hours.

The evidence and the testimony support the Union’s position in the case. The Employer must be limited to claims made in the grievance procedure, and not be allowed to raise new argument at the arbitration. Numerous arbitrators have also rejected the Employer’s position that the custodial staffing reduction was necessary due to an anticipated staffing package. The Postal Service has had ample opportunity to mitigate its liability in this case. It could have posted and filled the vacancy, or used craft employees from other primary assignment areas to cover the required custodial work hours. Instead, they chose to deny, obstruct, and avoid. The grievance should therefore be sustained, and the relief requested at Step 2 awarded.


The United States Postal Service

The Postal Service argues, that as a threshold issue, I must decide the merit of Management Exhibit #2, the staffing package for the custodial position at the Norwich Post Office. The Union avers that the package was never seen by the Union until the parties met to discuss the case, the day before the arbitration. Management’s arguments include that the evaluation was discussed at Step 3 as referenced in the Step 3 denial letter. At page 2 of Joint Exhibit 2, Martin Rothbaum writes “there has been no showing the evaluation was incorrect. I have asked the labor relations people to forward you a copy of the evaluation.” It is important to note that the Step 3 is silent on the issue of whether the staffing package was being provided for the first time or it was being provided as the business agent needed a copy of it.

In his testimony, Steward Joseph Ritz confirmed that the Step 2 Meeting was held on January 12, 1995, and the correspondence from the Northeast Area/Region Vice President Nancy George denying permission to hire for the custodial work was dated January 12, 1995. A precedent setting Step 4 settlement agreement entered into on April 20, 1983, states: “[d]ocumentation will be provided to the union upon tentative Regional approval of a lower frequency than found in the revised MS-47 and the APWU will have an opportunity to meet with Regional management prior to implementation of a frequency (ies) ...“

This letter advising the Norwich Post Office to pursue contracted cleaning services was not available to share with the Union until after January 12, 1995, the date it was sent to the Albany District Manager. The Step 4 establishes that there is no requirement to provide documentation until the decision has been made to lower the staffing. As to Mr. Ritz’ contention that Management failed to involve the local APWU, his own Step 2 letter of corrections/objections/additions outlines the concurrence that many of the local managers did want to hire a full-time career custodian and also anticipated that if filled, the position would be downgraded to a level 3 custodian.

Based on the timing of the denial letter from the Vice President indicating that documentation was not available at the time of the Step 2 meeting, and the Step 4 decision which established that the package did not have to be provided prior to the decision to reduce staffing, Management contends that Exhibit M-2 is a valid document. The Union’s Article 31 argument, which was raised for the first time in arbitration, is still without merit, as Article 31.3 states that information should be provided “to determine whether to file or to continue the processing of a grievance under this agreement.” As the grievance was filed and appealed, it raises a moot point.

The Postal Service reasons that the instant case is not dissimilar to I case I recently heard in Syracuse, New York. The Postmaster in Norwich testified that she requested to fill the vacancy. She then had to follow procedures to evaluate whether to subcontract. The 90-94 Agreement speaks to the thirty-nine (39) hour requirement if attrition has taken place. Postmaster Harris fully admitted the decision to hire was not fully hers. This is not unusual, as there are rules and regulations that must be followed. There also was no violation of due process, in terms of what she can settle.

The Employer also argued that no violation of Article 38 has taken place, in regard to posting. Article 38.4.A.2 & 38.4.A.3 were followed. Together, these articles give Management a forty (40) day time limit to revert a position. That forty (40) day time limit has been upheld at Step 4. The Union was successfully notified of the reversion of the position by correspondence from Postmaster Harris on December 1, 1994. We know the notification was successful because the APWU initiated a grievance on December 6, 1994. In contention are the time limits. Therefore, as established by the Step 4, the notification on December 1, 1994 for a vacancy on October 28, 1994, was timely and in compliance with Article 38.

The Union raises the issue of violations of the EL-921, and claims that the Step 1 and 2 officials did not have authority to settle the grievance. At the outset, it should be noted that the preface of the EL-921 clearly states that “no employee rights are created when these guidelines are not followed.” Failure to grant the Union’s remedy at any step of the grievance process cannot be interpreted to mean that Management lacked the authority to grant or settle in whole or in part. Management could not set aside the Subcontracting MOU just to prove authority to settle.

Both the 1990 and 1994 National Agreements establish in the Subcontracting MOU, the requirement that an authorized vacancy be as a result of an employee’s voluntary attrition. Postmaster Harris testified that this was the case. At Step 2, the Steward argued that the issue of higher level approval should not influence the time period as agreed to in Article 38. However, there are no time limits set forth in the subcontracting MOU as to when the staffing comparison must be completed. The threshold requirement is thirty-nine (39) hours or less of custodial cleaning required and the weekly hours for Norwich calculated at 30 hours.

The most significant national award with respect to maintenance custodial staffing was rendered by Arbitrator Gamser in Case No. A8-NA-0375, which was issued on June 1, 1981. In that precedential decision, the Arbitrator ruled that the MS-47 was a binding handbook and not a guideline. However, the Gamser award does not impose a manning floor or manning commitment upon the Service in carrying out its maintenance responsibilities. The MS-47 dictates the number of people based on the evaluation of work. There is no documentation that the Norwich position was ever a forty (40) hour a week position and it has not been a forty (40) hour a week position since it was vacated in 1994. However, no action would have been taken until the position was vacant.

Based upon the foregoing, the Postal Service asks that the grievance be denied. There is no evidence that any employee suffered any harm as a result of the Postal Service’s reversion of the custodial position. The Postmaster testified that no other maintenance employees worked in the facility. There were no other employees in the facility to bid on the position. Therefore, the Union remedy is inappropriate. The contract has no provision for penalty payment to the Union. The staffing package has demonstrated the Norwich Office at a thirty (30) hour a week contracted position. That level has maintained the office since 1995. There has been no showing of a need to increase the hours in the office. The Union has not met its burden by the preponderance of the evidence in showing that Management violated Articles 19 and 38 of the National Agreement when it reverted the custodial position at the Norwich Post Office. The Postal Service therefore respectfully requests that the Union’s grievance be denied.

FINDINGS OF FACT & OPINION

The American Postal Workers Union, AFL-CIO (“the Union”) and the United States Postal Service (“the Postal Service”) are parties to a National Agreement, which has been entered into evidence as Exhibit J-1. The moving papers have been marked as J-2, with additional joint and party documentary evidence also entered. Since the matter before me pertains to an issue of contract interpretation, the Union bears the burden of establishing a prima facie case by a preponderance of the credible evidence. This requires it to show that the Postal Service violated the agreement when it failed to post and fill a custodial vacancy occurring on October 28, 1994, at the Norwich, New York facility. The burden then shifts to the Employer to prove its affirmative defenses.

The underlying facts giving rise to the grievance are generally not in dispute, and following a careful review of the record are found to be as follow. On October 28, 1994, a custodial vacancy occurred in the Maintenance craft at the Norwich, New York installation. This followed the retirement of a thirty (30) year career employee, who worked forty (40) hours per week. No field maintenance was performed by this individual, except as required at Norwich. The Union’s dues check-off form reflected the finance number of Norwich, New York.

Following this vacancy, the Postmaster requested authorization to fill the position from the Area. Since this could not be accomplished within the thirty (30) day window of Article 38, on December 1, 1994, the Postmaster sent a buck slip to the Union, indicating that the position was reverted. (Ex. M—1). Prior to the reversion, there was no input from the Union, and the notice of reversion was not posted. On December 6, 1994 an information request was filed by the Union with Sharon Harris, Postmaster, Norwich, New York. (Ex. U-i). This sought: “1) Copy of Forms 4852, 4839 and 4869 which were in effect in 1993, used to determine staffing at the Norwich Post Office; 2) Copy of Forms 4852, 4839 and 4869 used for staffing determination prepared by Jim Merriam, Manager Field Operations, Syracuse, New York in 1994.”

The Postmaster was unable to provide the staffing package, as it was being developed. On December 22, 1994, Alternate Steward Ritz filed the same request with USPS Step 2 Designee Joseph Chesna, (Ex. U-2). Mr. Chesna was similarly unable to comply, and directed Mr. Ritz to Manager of Maintenance William Boyle, in Syracuse. On January 12, 1995, following the Step 2 that date, Mr. Ritz wrote to Mr. Boyle (Ex. U-3) and enclosed another information request (Ex. U-4). The cover letter explained the previous requests, and asked that the information be provided as soon as possible. Nothing was received from Mr. Boyle. The parties have stipulated that all the information requests were received by the Postal Service.

At the arbitration the Postal Service sought to introduce Exhibit M-2 into evidence. This document is the staffing package that was completed by the Postal Service following the reversion of the custodial position on December 1, 1994. The Union lodged a spirited objection to introduction of the same, on the grounds that it was not received until the day before the arbitration hearing. It therefore argued that it is barred by Article 15.2. Step 2(d), since it was not disclosed at Step 2 of the grievance procedure. The Union also argues that these documents were authored after the case was moved to arbitration.

For its part, the Postal Service contends that they support the USPS position discussed at Step 3, and referenced in the Step 3 denial. It goes on to maintain at page 5 of its brief that the Step 4 settlement agreement in Case No. H1C-NA-C-46 does not require it to be provided until the decision was made by Management to reduce staffing. For a variety of reasons, the Union’s position must prevail.

The touchstone underlying the foundation of the grievance process which is embodied in Article 15.2 Step 2.(d) is fundamental fairness and full disclosure. This militates against the arbitral embrace of “surprise evidence,” especially in a situation such as this, where the evidence is intended to be dispositive of the ultimate issue. My in camera review of this evidence demonstrates that the 4852 was reviewed by Mr. Boyle on December 19, 1994, and approved by Mr. Chesna on the 22nd. On December 28, 1994, Mr. Boyle sent a letter to Manager of Human Resources Mort Miller regarding not cutting the position under 40 hours. On December 30, 1994, Mr. Miller sent a memorandum to Human Resources Analyst Amy Anderson which stated: “[e]nclosed is a custodial staffing package for the Norwich, NY Post Office. Please expedite!”

    Thereafter, on January 12, 1995, Nancy George, Vice President Northeast Area Operations sent a memorandum to J.T. Weeker, District Manager Albany District, subject: Custodial Staffing Norwich, NY. Finally, on January 20, 1995, Manager, Maintenance John Fuschino sent a buck slip to Mort Miller on the issue.

The three (3) information requests by the Union have been previously chronicled and credibly testified to by Mr. Ritz, who indicated that nothing was received. The Step 2 in the case was held on January 12, 1995. That very same date, a request for the information was made directly to Mr. Boyle. The Service has stipulated that it was received, and the record shows he never replied. The staffing package was also completed on the 30th of December. Therefore, on January 12th, the Service’s agents made a decision to withhold the recently completed staffing package from the Union. This was done at its own peril.

In USPS and APWU, Case No. B9OT-4B-C-95028404/94249C045 (Arbitrator Gudenberg August 23, 1999), the Arbitrator quoted at page 10 from the National award of Arbitrator Aaron in Case No. NC-E-1 1359 (1984):

[i]t is well settled that parties to an arbitration under a National Agreement are barred from introducing evidence or arguments not presented at preceding steps of the grievance procedure, and that this principle must be strictly observed. The reason for this rule is obvious: neither party should have to deal with evidence or argument presented for the first time in an arbitration hearing, which it has not previously considered and for which it had no time to prepare rebuttal evidence or argument. * * * *

February 14, 2001 at pages 10-11), where he found:

[n]ow, it is true the Union bears the burden in this contractual matter of establishing at the very least a prima-facie case of a violation of the parties’ Agreement, * * * * And since the Union was not provided the requested information concerning the disputed subcontract, the parties and this Arbitrator are simply left to speculate as to the scope and other relevant information surrounding the ECA subcontract. As for who bears the burden of seeking this document from higher level managers (or party representatives) there is no need to resolve that issue for when the Service failed to respond to the Union’s 23 April 1996 request for such, they clearly foreclosed appropriate consideration of such data. They also effectively precluded their representative from adducing relevant evidence in rebuttal of the Union’s prima-facie showing at arbitration.

The Postal Service’s reliance on the Step 4 in Case H1C-NA-C-46 is misplaced. Initially, it presupposes that the information contained in Exhibit M-2 was provided to the Union, when the record indicates it was not. Mr. Ritz gave unrebutted testimony to this effect, and nothing supports a conclusion that a courtesy copy was being offered to the NBA after the Step 3. It very well may be that the Labor Relations Representative discussed it at the Step 3, which occurred considerably after the case was moved to arbitration, but there is no evidence that the information was provided by labor relations as promised in the Step 3 denial. And even if it had been, it still would have been barred.

Articles 15 and 31 also do not support such a myopically technical position on when the information was actually required to be provided, as that espoused by the Service. This conclusion is buttressed by the December 2, 1993 memorandum to all upper management from the USPS’ Vice President, Labor Relations, Joseph J. Mahon, Jr. This followed the settlement of consolidated unfair labor practice charges related to the requests for information brought by the APWU before the National Labor Relations Board, and stated in relevant part:

[i]n addition, I would like to take this opportunity to reaffirm the general principle that the unions are entitled to all relevant and necessary information to perform their obligations as the representative of the bargaining unit employees. Therefore if the requested information has some bearing on an issue between the parties, it should be disclosed to the unions. ** ** Finally, information requests should be timely answered and delays should be avoided.  The fact that the information may not reside in the local unit is not sufficient to deny an information request, if management is aware that the information is accessible by alternative means,

The Union has clearly proven by a preponderance of the credible evidence, that Exhibit M-2 is not admissible, and that the Postal Service may not utilize it for any purpose.

At the outset, I affirm my considered opinion that notwithstanding the disclaimer in the document, the Union is entitled to a strict interpretation of the EL-92 1, as it is a document unilaterally promulgated by Management. I also agree that the Step 4 Settlement Agreement m Case No. H1C-1K-C 17927 and the National Agreement establish that the Step 1 designees have authority to settle the grievance. The caveat is that the settlements are binding so long as they do not have the effect of amending the National Agreement. In this respect, there is considerable merit to the Postal Service’s argument that the MOU on Subcontracting could not be set aside just to “prove” a to settle. In simple burden of proof terms, the Union has not met its burden, and this argument is rejected. The merits will now be discussed.

The Union emphasizes the MS-47 Handbook entered into evidence as Exhibit J-3 commands at  116 that “[o]nce a custodial staffing level is determined using the procedures in this handbook, that staffing level must be maintained. If conditions arise that warrant a change in staffing, the entire staffing procedure must be redone, i.e. new forms must be completed.” I concur with the APWU that this plain language requires that because the custodial position was in existence by virtue of a staffing package previously completed by Management, the Postal Service had to maintain and staff that position. This conclusion is underscored by a literal avalanche of both precedential and persuasive Postal authority. See APWU and USPS, Case No. A8NA-0375 (Gamser June 1, 1981 at pages 4 & 6)  (”The question therefore in issue now appears to be whether the USPS is complying with the MS-47 Handbook, as such compliance is required pursuant to Article XIX, when local management has unilaterally changed frequencies or substituted policing for actual cleaning operations. “For the reasons outlined above, the Arbitrator is of the opinion and must find that the provisions of Article XIX impose upon the Service a duty to abide by the criteria or standards established in the MS-47 Handbook for both unit performance as well as frequencies. The unilateral determination to depart from those standards, and particularly, from minimum frequencies contained in the Handbook, have resulted in violations of Article X1X. Article XIX incorporates by reference these working conditions into the collective bargaining agreement. Such modifications thus unilaterally imposed by management which have an adverse impact upon the tenure of employment or the workload of the employees affected must be rescinded.”) See also USPS and APWU, Case No. H7T-3A-C 8445 (Step 4 Settlement Agreement); USPS and APWU, Case Nos. K94T- 1K-C 992141 60/BM 1396 & K94T- 1K-C 992141631 /BM 1496 (Arbitrator Wolf, July 6, 2001 at page l4)(”Accordingly, I find that both before and after July 10, 1996, custodial vacancies existed at the Friendship and V Street stations and that these vacancies were not filled until August 1997 (in the case of V Street station) or September 1998 (in the case of the Friendship station). This failure to fill the vacancies in a timely manner or to otherwise have regular employees perform that work violated both paragraph 116 of the MS-47 Handbook and Article 38, Section 4(A).”); USPS and APWU, Case No. 090T-4G-C 970704661 (Arbitrator Helburn, December 29, 1998 at page 6)(”Article 19 serves to incorporate by reference the MS-47 as part of the National Agreement. Paragraph 116 of that handbook is explicit in stating that ‘[ounce a custodial staffing is determined ... that staffing level must be maintained.’ Arbitrator Gamser noted that his ruling did not impose ‘a manning floor or any manning commitment upon the Service in carrying out its maintenance responsibilities.’ But the Gamser award and the language of the MS-47 make clear that the Postal Service did not have the right to disregard the existing Form 4852 and to reduce the hours allotted to the cleaning of the MPO.); USPS and APWU, Case No. K9OT-4K-C 950l4530/9461CAW9 (Arbitrator Miles January 22, 1998 at page 14).

The final sentence of  116 requires that an entire new staffing package be done in the event conditions arise that “warrant a change in staffing.” Such conditions hypothetically might include a decrease in the amount of area to be cleaned occasioned by a change in the physical plant, or perhaps a revolutionary floor cleaning application which cuts custodial man hours dramatically. Retirement is not in my view a condition which in and of itself warrants a change in staffing, when all else has remained constant. The record also demonstrates that the Postmaster did not want to lose the position, and in fact requested permission from the Area to fill it. Therefore, based upon the totality of the circumstances, a finding of fact must issue that a custodial position existed and that no conditions arose that warranted a change in staffing.

The Union has acknowledged that there are certain limited circumstances when a position need not be filled. Paragraph 130 of the MS-47 is entitled “Cleaning Service Contracts, and  131 states: “[u]se of cleaning service contracts is governed by the Administrative Support Manual and must be in accordance with the current National Agreements.” [emphasis supplied in original]. The MOU on Subcontracting Cleaning Services from the 1990 National Agreement, which is incorporated by reference into the ASM (Ex. J-4), establishes two (2) conditions precedent before even considering letting a subcontract. Section .261 Authorization provides at subsection a.: “[w]hen a vacancy as a result of an employee’s voluntary attrition is identified in an independent installation with 39 hours or less of custodial cleaning, the following sequential actions will be taken. 

It is beyond dispute that the position in question was occupied by a career maintenance employee who retired. This event satisfies the first condition. The record also reflects that the Union’s partial purpose in its numerous information requests related to the staffing package in existence when the employee retired, was to confirm that this was a forty (40) hour position. If so, it would not qualify for a subcontract.

Notwithstanding my prior evidentiary ruling and the Postal Service’s denial that evidence is present that a forty (40) hour position existed (Service’s Brief at page 6,  9) I note this critical detail was supplied by the Postmaster during direct examination. Clearly sidestepping the implication that the employee provided “field maintenance” at several installations, Ms. Harris candidly and unequivocally testified that the employee worked forty (40) hours, and performed “field maintenance” as necessary in Norwich.

Parenthetically, the Union’s contention that the PS Form 4852 in Exhibit M-2 which was operative when the decision was made to revert the position, shows 47.75 custodial work hours per week in Norwich, is credited. (Union Brief at 9). See also, December 28, 1994 memo from William J. Boyle, Manager Maintenance to Mort Miller, Manager Human Resources. This was captioned “Subj: Norwich Staffing,” and stated: “[t]his position should not be cut under 40 hours as the custodian at this office will be assisting the FMO Specialist that will be domiciled at the Norwich facility.” Notice is also taken that the 4852 was reviewed by Mr. Boyle on December 19, 1994, and approved by Mr. Chesna on December 22, 1994. Thus, since the position was in excess of the required threshold hours, both conditions were not met.

Even assuming that the Postal Service was able to utilize Exhibit M-2 in connection with an affirmative defense, and successfully rebutted the Union’s Article 31 issue, the subcontracting would still violate the MOU and the MS-47. This is because Management had an affirmative obligation to undertake sequential actions, and did not do so. A cost ascertainment study would have to be done to determine if a contract cleaning service or a career maintenance employee would be used. In the former case, the cost comparison would be provided to the local APWU President, along with Management’s determination.

These factors require a finding that the subcontract based on the subsequent staffing package was improperly let. In reaching this position, I have carefully considered and rejected the Postal Service’s position that my award previously rendered in Syracuse, New York was not dissimilar from the instant dispute. In USPS and APWU, Case No. B9OT-lB-C 95042004/94046 (Arbitrator Pecklers, February 26, 2002), I denied the grievance in its entirety in a subcontracting case involving the AM7F. However, the facts of the case were clearly distinguishable, as I found that an existing cleaning services contract was in existence.

These considerations establish a prima facie showing by the Union that a violation of Article 19 (MS-47) and the MOU has occurred, and that the vacant position should have been posted for bid among all eligible employees, pursuant to Article 38.4.A.2. See USPS and APWU, Case No. WOT-5F-C-9673 et seq. (Arbitrator Aisenberg June 19, 1996).

The burden now shifts to the Postal Service to prove its affirmative defenses. As previously discussed, Exhibit M-2 is not available for exculpation on the subcontracting issue. The Employer has additionally argued that Article 38.4.A.3 grants it the right to revert a position in timely manner. My interpretation of this language is consonant with the Postal Service’s, in that the reversion must be perfected within forty (40) days. See generally, USPS and APWU Case No. H7T-4G-C 34553 (Step 4 Settlement Agreement dated April 19, 1 993)(” **** We further agreed that Article 38.4.A. subsections 2 and 3 establishes a 40 day time limit for completing the reversion process.”). However, it is axiomatic that a reversion may not be accomplished by osmosis. Paragraph 111 of the MS-47 Handbook states:

[I]t is the responsibility of the postmaster/manager of a postal facility to assure that custodial maintenance is sustained at a satisfactory level. When making staffing determinations, management must make a commitment to maintain a clean and healthful working environment. When determining what, when and how often to clean, this commitment must be the principal concern.

No consideration of or deliberation on any of the MS-47’s imperatives was undertaken by the Postmaster before undertaking the critical decision to revert this duty assignment. Moreover, as the buck slip at Exhibit M-1 shows, “[t]he position of custodian at the Norwich Post Office became vacant on October 28, 1994. This position must be evaluated and approved by Area. Since this can not take place in 30 days the position is reverted at this time.” Ms. Harris also indicated that she had not made the decision to revert the position.

To allow the general language of Article 38.4.A.3 and Article 3 to trump the specific language of the MOU and the MS-47, would pervert the spirit and the letter of the National Agreement. A finding is therefore appropriately made, that irrespective of the timeliness of the action taken, the position was not properly reverted. In so finding, I add my voice to those of my arbitral colleagues, who have found that the prospective nature of the action taken does not pass procedural muster. See USPS and APWU, Case No. C87T-iC-C 90006204 (Arbitrator Blackwell July 13, 1996 at page 8)(”The lack of evidence of an approving event by higher authority cannot logically be found to yield the results suggested by management in this case, that is, that the disputed MS-47 determination of custodial staffing levels for Shillington is invalid for lack of approval by higher authority. Neither the MS-47 handbook nor any cited provisions in the National Agreement provides any basis for finding that evidence of an approving event by higher authority is a necessary condition-precedent for concluding that a particular MS-47 determination is valid. ****); Accord, USPS and APWU. Case No. K94T-1K-C 99214l60/BM1396 & K94T-lK-C 99214163/BM1496 (Arbitrator Wolf, July 6, 2001. at page l6)(”The Postal Service’s claim that it was merely waiting for the staffing survey to be approved by management does not provide a defense to its inaction. Apart from the fact that this new argument is precluded from consideration, it ignores the fact that vacancies existed even under the old staffing authorization.”).

The only remaining issue to be disposed of pertains to the appropriate remedy. Clearly, the Postal Service should be required to post and fill a custodial position at the Norwich, New York Post Office. Additional relief is also appropriate in the form of monetary compensation to all class members adversely affected by the Service’s failure to staff the existing 40 man hours of the position. Such an award would be proper commencing ninety (90) days after the position became vacant on October 28, 1994, until such time as it is ultimately posted and filled in compliance with Article 38.

However, based upon the credible testimony of the Postmaster that no other craft members would have been eligible to bid on the position had it been posted, I am reluctant to order blanket relief which would serve as a windfall, rather than a remedial measure. For this purpose, this issue will be remanded to the parties for identification of eligible class members, and if they exist, a determination of an appropriate monetary award.  In so ordering that the parties themselves determine the monetary remedy, I expressly endorse without citation, the concerns related to a numerical calculation for back pay articulated by Arbitrator Wolf in Case No. K94T-1K-C 99214160/BM1396 & K94T-lK-C 99214163/BM1496 at pages 19-23. Jurisdiction will be maintained in the event no agreement is reached.

CONCLUSION

The American Postal Workers Union has established by a preponderance of the credible evidence that the Postal Service violated the National Agreement, specifically, Articles 19, 38 & the MOU on Subcontracting, when they failed to post and fill a custodial vacancy, occurring October 28, 1994 at the Norwich, N.Y. facility.

AWARD

The grievance is sustained. The Postal Service is directed to immediately post and fill one (1) Building Maintenance Custodian, Level 4, at the Norwich, New York Post Office. All class members shall be compensated equally for all regular hours that would have been worked if a custodial position were posted and awarded as of ninety (90) days after October 28, 1994, until such time that this position is filled. The back pay issue is remanded to the parties for a joint identification of the class, and the determination of an appropriate monetary amount. Such deliberations shall be consistent with the guidance provided herein. Jurisdiction shall be retained in the event a back pay award is necessary, or to resolve any issues concerning the implementation of this award.

Gary Kloepfer
National Representative at Large

 


 

The following award is abbreviated due to its length.  I have tried to maintain sufficient information for you to acquire the value of the award.   This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact us. 

In this case the Postal Service discharge an employee for allegedly falsifying their employment application and the arbitrator found that the Postal Service presented sufficient evidence to demonstrate falsification.  The arbitrator agreed that falsification is more than simply answering a question incorrectly.  He found that falsification requires an intent to deceive.  However the arbitrator overturned the discharge due to the many due process errors caused by local management.  He found that a Pre-disciplinary hearing did not occur, rather he found that the meeting that management claimed was a Predisciplinary meeting was actually an investigative meeting.  He also found the management violated the grievant’s due process rights when lower level supervisors did not have authority to settle the grievance as the discipline was issued and controlled by a higher level of management.

REGULAR ARBITRATION PANEL

Case Number:    G98T-IG-D-01247275

Arbitrator:    Hamah R. King

For the Union:    Terry  Martinez

Award Summary

THE GRIEVANCE IS SUSTAINED. While it is clear the Grievant knowingly falsified his answer to a material question on his application for employment, the multiple failures of the Postal Service to follow proper procedure in the disciplinary and grievance process must result in the grievance being sustained.  The entitlement of the Grievant to the protection of the processes established by the National Agreement between the parties is not dependent on an ultimate determination of the Grievant’s guilt or innocence of violations of rules and regulations of the Employer. Rather, it is based on the right the Union to insist that the Postal Service adhere to agreed procedures in the implementation of the grievance process.

ISSUE

Was the Grievant discharged for just cause? If not, what shall the remedy be?

FINDINGS OF FACT

Contrary to the declamations of the Postal Service, this case is replete with contradictory and convoluted testimony and documentary evidence. The facts, both in regard to the substantive and the procedural matters are in dispute, and resolution of the issue is heavily dependent upon a determination of the credibility of the witnesses. Therefore, a detailed recitation of the facts is necessary to an understanding of the reasons for the award in this case.

The Grievant, Ronald Preston, applied for a custodial position with the Postal Service by submitting a signed application dated June 6, 2001. However, testimony during arbitration and the dates of other documents and the filing of the grievance in this case establish the 2001 date as a mistake and the actual date as June 6, 2000. Due to Postal Service application processing requirements, the Grievant again signed the same application on August 28, 2000. Under item 7a. the application signed by the Grievant contains the following question:

Have you ever been convicted of a crime or are you now under charges for any offense against the law? You may omit (1) any charges that were dismissed or resulted in acquittal: any conviction that has been set aside, vacated, annulled, or sealed: (3) any offense that was finally adjudicated in a juvenile court or juvenile delinquency proceeding: and (4) any charges that resulted only in conviction of a non-criminal offense. All felony and misdemeanor convictions and all convictions in state and federal courts are criminal convictions and must be disclosed. Disclosure of such convictions are required even if you did not spend any time in jail and/or were not required to pay a fine.

    The Grievant answered “no”, to the above question. According to his testimony, the Grievant had obtained a Police Report which did not indicate that he had ever been convicted of a crime. He approached Postal Service personnel employees Willie Wilson and LaNell Brem, showed them the Police Report, and asked them if it were okay to answer no to the above question. They told him it was okay because the report did not show he bad done anything wrong. Further, he stated he told the personnel employees that be had an assault charge but that he thought the conviction was outdated. He admitted that he had received warnings to be sure his answers to the questions on the application were true and factual.

When asked by the Postal Service Advocate, during arbitration, if he bad ever answered a similar question differently on an application for employment, the Grievant answered, “no”. The Grievant was then confronted with another application for Federal employment which he had completed and signed, dated February 2, 1998. This application contained a question numbered 8, which reads as follows:

During the last 10 years, have you been convicted, been imprisoned, been on probation, or parole?

(includes felonies, firearms or explosive violations, misdemeanors, and all other offenses.) If “Yes”, use item 15 to provide the date, explanation of the violation, place of occurrence, and the name and address of the police department or court involved.

Contrary to his response to the Postal Advocate, on that application, the Grievant answered “Yes” to the question and at item 15 provided the following explanation:

8)    A argument took place between me and my neighbor over a noise making stereo so theie (sic) was some pushing and we both got charged.

Both LaNell Brem and Willie-Wilson testified regarding their association with the (grievant during the application and orientation process.

Ms. Brem is a Human Resource Specialist involved in the application and hiring process at the Waco, Texas postal facility. She processed the application and hiring package for the (grievant. According to her testimony, the (3rievant was hired by the Postal Service at the Waco plant sometime in December, 2000. She participated in the application orientation of the Grievant. However, she never discussed any criminal convictions with the Grievant and never advised him that it was okay for him to respond “no” to question 7a. which asked about any prior criminal convictions. She stated that the Postal Service later received an investigative report in August 2001 that provided details of a criminal conviction of the Grievant for assault, prior to his application for employment. She stated further that the Postal Service would not have hired the Grievant if it bad known about his assault conviction.

Mr. Wilson a clerk in the Human Resources Department of the Waco, Texas postal facility, stated he met the Grievant during the application orientation process. He stated he does not recall the Grievant asking him any question regarding the reporting of criminal convictions. He advised applicants to report everything on their applications.

On August 9, 2001, the Postal Service received a background investigative report of the
Grievant from the United States Office of Personnel Management. The report revealed that on
November 1, 1995, the Grievant had been convicted of the crime of assault in Houston, Texas.
He was fined $250.00 and placed on probation for 180 days.

Timothy Loftin is the Maintenance Manager of the Waco postal facility. As a result of the investigative report, Mr. Loftin met with the Grievant and Union Steward Oscar Moore. Mr. Loftin’ s notes regarding the meeting were recorded on a document labeled “Pre-Disciplinary Interview”. The notes are not dated and contain no date notations. However, Mr. Loftin stated the meeting was held and the notes were transcribed prior to a Disciplinary Action Proposal which he drafted and which is dated August 17, 2001.

Mr. Loftin was ambivalent regarding the purpose of the meeting with the Grievant and the Union steward. He first characterized the meeting as investigative and he indicated to the Grievant that that was the purpose. During the meeting the (3rievant’s application was discussed. He stated he was told by the (grievant that he had been told by employees in personnel that he did not need to include information regarding his assault conviction on his employment application. Mr. Loftin subsequently talked to the personnel employees named by the Grievant and was informed that they had not told the Grievant that it was okay to answer no to the question of whether he had been convicted of a crime.

Further, Mr. Loftin testified that he held a pre-disciplinary meeting with the Grievant  sometime in September, 2001. He did not give a specific date. However on further questioning by the Postal Service Advocate, the following exchange took place:

Postal Advocate: Page 13 shows a date. Would you have completed this before or after you had the pre-disciplinary interview with Mr. Preston?

Mr. Loftin: Well what we normally do is prepare it afterward. We get the information and everything and I fill this out.

Postal Advocate: I sense some confusion as to when the pre-disciplinary interview was held.
   
Mr. Loftin: I’ll look and see. (no further answer)

Postal Advocate: To recap you prepared this (page 13) after you met with Mr. Preston.

Mr. Loftin Yes I did.

Postal Advocate: Page 14 has a record of the Pre-D you held?

Mr. Loftin: True

Union steward, Oscar Moore, stated that no Pre-disciplinary meeting was ever conducted with him and the (grievant. He met with Timothy Loftin and the Grievant on two occasions. The first meeting he was called in as a Union representative but was not advised of what the meeting was about. During that meeting, the Grievant’s application, his negative response to question #7a of the employment application and the Grievant’s reason for the negative answer were discussed. During the next meeting the Grievant was given the “Notice of Proposed Removal” and was removed from the premises. As Union steward his only further actions regarding this grievance was to sign the Union’s grievance of the removal, meet with the Grievant’ s supervisor at Step 1 of the grievance procedure, and sign the Step 2 and Step 3 Grievance Appeals, which he did not draft.

On August 20,2001, the disciplinary action of removal of the Grievant, recommended by Mr. Loftin was approved by the Plant Manager. On August, 31, 2001, a “Notice of Proposed Removal” of the Grievant was prepared, signed by Mr. Loftin and issued to the Grievant. The notice reads in pertinent part as follows:


August 31, 2001

Subject:    Notice of Proposed Removal

To Ronald Preston
U.S. Postal Service
Waco TX 76702-9997

This is advanced written notice that it is proposed to remove you from the Postal Service effective no sooner than 30 calendar days from the date of your receipt of this notice. The reason for this action is as follows:

YOU ARE CHARGED WITH FALSIFICATION OF YOUR PS FORM 259 1, APPLICATION FOR EMPLOYMENT. Specifically, on August 28, 2000, you checked the column entitled “NO” in response to question #7a of the PS Form 2591. Question 7a of the PS Form 2591 specifically states, “HAVE YOU EVER BEEN CONVICTED OF A CRIME OR ARE YOU NOW UNDER CHARGES FOR ANY OFFENSE AGA1NST THE LAW? All felony and misdemeanor convictions and all convictions in state and federal courts are criminal convictions and must be disclosed. Disclosure of such convictions are required even if you did not spend any time in jail and/or were not required to pay a fine.” However, information provided to this office by the Office of Personnel Management, OPM, as reported to the Federal Bureau of Investigation, FBI, on August 9,2001, revealed that you had the following arrest/conviction record:

Date of Arrest: (9/18/95)
Charge: Assault
Disposition: Fine $2501 180 days! Probation 1 year
Days/Probation End 10/31/96

When given the opportunity to explain the discrepancy between your negative response to question 7a of the PS Form 2591 and your conviction record, you stated that you responded “no” because during orientation, you were informed that “it was irrelevant since it was not current and did not have to report it.” However question #7a of the PS Form 2591 specifically asks “Have you EVER been convicted of a crime...” and only allows for omission of convictions which were “dismissed or resulted in acquittal, set aside vacated, annulled, expunged, or sealed...” Furthermore, on August 28,2000, you signed a statement wherein you affirmed that you had read and understood that you “MUST” include all convictions, whether they occurred in the United States or another country. Payment of a fine is a stipulation of guilt and is considered a conviction. Serving time in jail in lieu of paying a fine is considered a conviction. All arrest that have not been adjudicated must be noted.” In addition, you were placed on notice that if it was  later determined that elements of any employed documents have been answered falsely, you are subject to removal and may be punishable by fine or imprisonment.” The PS Form 2591 further contains a caveat that specifically placed you on notice that” A false or dishonest answer to any question in this application may be grounds for not employing you or dismissing you after you begin work, and it may be punishable by fine or imprisonment (US Code, Title 18,Sec. 1001). All information you give will be considered in reviewing your application and is subject to investigation.” Accordingly your negative answer to this specific question concerning your past conviction record can only be characterized as an apparent attempt to deceive and mislead postal personnel charged with the responsibility of determining your suitability for postal employment. The evidence of record clearly establishes that your response was self-serving in an attempt to gain a benefit, namely employment.

The Union filed a Step 1 grievance of the removal notice on September 7,2001. The Step 1 meeting was conducted between the Grievant’ s immediate supervisor, Charles Mason and Union steward, Oscar Moore. The grievance was denied with the simple notation of the supervisor, “denied’. Oscar Moore testified that the supervisors comment was “let them handle it at the next level.” Both Union steward Moore and Union President, William Reed testified that no Step 2 designee was ever named and no Step 2 meeting was ever held.

Contrary to the testimony of Mr. Moore and Mr. Reed, Mr. Loftin testified that he was designated by the Plant Manager as the Step 2 designee and held a Step 2 meeting with Union steward, Oscar Moore, on September 20,2001. Usually it is the custom of the parties to present all the grievance documents  which have been jointly shared during the grievance process as their Joint Exhibit. The Postal Service uses PS Form 2609 for this purpose. The Step 2 response was not presented in this way during this arbitration. However, Mr. Loftin introduced a PS Form 2609, Step 2 grievance response during arbitration. The Union advocate vigorously objected that he had not previously seen this response nor had such a meeting taken place. The document was accepted based on Mr. Latin’s sworn statement that it was prepared as a result of a Step 2 meeting but with the caveat  that it was subject to a test of credibility. In this case the alleged Step 2 response is significant. In that response, Mr. Loftin stated under items 14 and 15:

14. Reasons for Decision
Management did its own investigation using resources provided to them. Also interviewed LaNelle, Willie Wilson, and David Ingram. Provided union with application forms and form 61 that had been falsified. Gave union copy of investigation.

15. Detailed Statement of Facts Including Contractual Provisions Witness
Statements with Their Titles
Mr. Preston did in fact falsify application. The Postal Service would not have hired him if this information had been made known.

The Union appealed the grievance to Step 3. However, no Step 3 meeting was conducted and the Union appealed to arbitration from step 2.

POSITION OF THE POSTAL SERVICE

There is no dispute that the Grievant falsified his statement on his application for employment when he answered to the question regarding prior criminal convictions. He admitted this to the maintenance manager when he told the manager someone else had told him it was okay to enter a no answer to question 7a of the application. Maintenance Director. Timothy Loftin, conducted an independent investigation and determined that the personnel employees identified by the Grievant as having given him an okay to enter a negative answer to question 7a did not advise him that it was okay to do so.

With regard to the process followed after the grievance was filed, the Postal Service argues that the evidence establishes that the Grievant was provided a Pre-Disciplinary hearing. It characterizes the first meeting held by Mr. Loftin with the Grievant and Union steward Oscar Moore as a Pre-Disciplinary meeting. Further, the Postal Service argues that Mr. Loftin held a Step 2 meeting with the grievant and Union steward Moore on September 20, 2001. It cites as evidence of this meeting its Exhibit 1 PS Form 2609 Grievance Summary allegedly prepared by Mr. Loftin as a result of the Step 2. Meeting. As to the Union’s contention that it did not timely receive information it requested, the Postal Service points out that the Union received the information it requested one day after it filed its Step 2 appeal. Further, the Step 2 appeal was filed by the Union seven days before the due date and the Union was not prejudiced by the receipt of the information subsequent to filing its Step 2 appeal.


POSITION OF THE UNION

The Grievant did not willingly falsify his application for employment. He believed he did not need to reveal his conviction for assault in 1995 because he had received a police report which did not show he had done anything wrong. When be queried Postal Service personnel employees, who were conducting the application orientation, about how to respond to question 7a on the application, he was told it was okay to provide a negative answer.

The Union alleges the Postal Service made several fatal errors in the procedures followed in dismissing the Grievant and in the processing of the grievance in this case. First, the management failed to conduct a pre-disciplinary hearing for the Grievant. The meeting alleged to have been a pre-disciplinary hearing was in fact, an investigative meeting. Second, the Postal Service’s Step 1 representative, the Grievant’s immediate supervisor, did not make any attempt to resolve the grievance . He simply indicated that management should deal with it at the next level. Third, the Postal Service failed and/or refused to hold a Step 2 hearing or respond to the Union’s Step 2 Appeal. These actions of the Postal Service amount to a denial of due process and should in the grievance being sustained.


DISCUSSION AND ANALYSIS

The Postal Service relies heavily on the support of arbitration decisions rendered by Arbitrator Barry Simon in Case No. J98C1JJ-D 0018210 and Arbitrator James Odom in Case No. G94C-JG-D 9901209. Both arbitrators were presented cases involving the discharge of a Grievant who had provided an untrue answer to a relevant question on an application for employment. The two arbitrators assessed the reasoning of other arbitrators who had been assigned the task of making a decision in cases where the (3rievant had provided an untrue response to a question on an application for employment. Both arbitrators refer to the decision of Arbitrator Shedler in Case No S8V-3A-D 29414. In that case Arbitrator Shedler set out his interpretation of the meaning of “falsification” as used in Article 12.1.13. of the National Agreement between the parties. In this regard, he stated:

In my opinion, under the meaning of Article XII Section (B) the word “falsification” requires that: (1) an incorrect statement has been made on the application for employment; (2) the applicant knew the statement was incorrect; (3) and the applicant made the incorrect statement with the intention of hiding the information from the Employer. All 3 requirements must be present for falsification to take place...

Arbitrator Odom then applies the falsification intent requirements of Arbitrator Shedler to the case before him. In doing so, he reasons that intent can be inferred from the facts of a particular case.

In arriving at the decision in the case before him, Arbitrator Simon after referring to the criteria for determining falsification set out by Arbitrator Shedler, cites the decision of Arbitrator Walt in Case No. CJM-4C-D 35423. Arbitrator Walt reached a different conclusion regarding what is needed to prove falsification. As quoted by Arbitrator Simon, Arbitrator Walt said:

In the first place there is no requirement present m Section 12.1.13 that an individual providing a false statement on the employment application must do so with the intent to deceive. To falsify is to state untruthfully or to misrepresent. Falsification is the act providing an untruthful statement or representation. While the intent to deceive may be present when a false answer is given to a question on the employment application, a finding to that effect is not required to bring the falsification within the purview of the contractual provisions of Section 12.1B authorizes the Employer to “use” a falsification by an employee in the employment application “as a reason for discharge” even after the employee has completed the probationary period.

Arbitrator Simon attributes the superior reasoning to Arbitrator Walt and decides to follow his conclusions. He, nevertheless, explores the evidence in his case and reaches a conclusion that the evidence raises a presumption of the intent to deceive by the Grievant.

These two cases represent the dichotomy existent in the decisions of arbitrators on this subject. It is obvious that the interest of the Postal Service is to obtain sufficient information on the background of an applicant for employment to determine his/her suitability. It is equally obvious that an untrue answer to a question on the application form inhibits the ability of the Postal Service to obtain adequate information. I find nothing in the National Agreement designed to prevent the Postal Service from attaining its information gathering objective.

The above notwithstanding, by the design of its employment application Postal Service has thrust upon arbitrators the task of determining whether a Grievant has falsified the answer to a material question on an application. It has done this by its declaration on the application for employment that the offense is a false or dishonest answer. Consequently, arbitrators decisions hinge upon making a determination that the applicants response did or did not amount to falsification. Thus the Postal Service is not seeking to discharge or discipline an applicant because the information given has deprived it of the opportunity to make an informed decision regarding the applicant’s suitability but because he or she has falsified a response. The true interest of the Service would be better served if the actions of the Postal Service in this situation were dependent on a determination that an “untrue” answer bad been given to a material question and the Postal Service was thus entitled to reexamine its decision to hire the applicant based on a consideration of the true facts. It would then be unnecessary to establish falsification which unequivocally requires intent. Arbitrators have attempted to reach this result by injecting into their decisions consideration of Postal Service testimony that the (3rievant would not have been hired if the correct answer to the question had been given. Such a determination is irrelevant when the Postal Service, by the wording of its application, has made the only issue, falsification.

Arbitrator Shedler is absolutely correct in his conclusion that falsification requires intent to deceive. Although the matters we are dealing with in applying the terms of the National Agreement are not criminal, the Postal Service has chosen to characterize the act of falsification of an application as a criminal act. Its warning to applicants regarding the provision of false answer to questions on the application include the following statement:

“A false or dishonest answer to any question in this application may be grounds for not employing you or for dismissing you after you begin work, and may be punishable by fine or imprisonment. (U Code. Title 18. Sec. 1001)....

Clearly the American system of criminal jurisprudence would require proof of intent to establish falsification. I find the reasoning of Arbitrator Schedler to be accurate with regard to the elements necessary to establish intent. An untrue answer to a question on the application raises a presumption that the answer was knowingly false. However, such a presumption may be rebutted. If it is established that the answer was knowingly false, then a presumption is raised that it was given with intent to deceive. This presumption is also subject to rebuttal. If it is established that the untrue answer was given with intent to deceive, then the Grievant has falsified his/her application and is justifiably subject to the disciplinary actions imposed by the Postal Service.

In this case, the evidence that the Grievant gave an untrue answer to Question 7a of his employment application is not in dispute. His testimony that he was informed that it was okay to provide a negative answer to a question regarding his criminal record/history is denied by both persons to whom he attributes such advice. In addition, the Grievant has demonstrated his understanding of the question and the answer it requires given his criminal history. On February 12, 1998, the Grievant completed another application for Federal employment. Question 8 on that application reads:


8.    During the last 10 years have you been convicted, been imprisoned, been on probation~ or been on parole? (includes felonies, firearms or explosive violations, misdemeanors, and all other offenses).

On this application, the Grievant’ s response was yes. There is nothing in the record to indicate if be was hired for the position for which he applied. The Grievant sought further to excuse his case by testifying that he responded as he did because the Police Report which he obtained did not show that he had done anything wrong. The report was not made a part of the record in this case. Nevertheless, irrespective of what the police report showed, the Grievant was aware of his record of a criminal conviction and knew it was his responsibility to report it as be had done on a previous application for Federal employment. I find that the Union has not met the burden of overcoming the presumptions or the evidence that the grievant knowingly provided an untrue answer to a material question on his application for employment or that he did so with the intent to deceive. His actions therefore, constitute falsification as that term is used in Article 12.1 .B. of the National Agreement.

PROCEDURE

The Pre-Disciplinary Hearing

The Union has alleged that the Grievant was denied a pre-disciplinary hearing. Although the contract between the parties does not require that a Grievant be given a pre-disciplinary hearing before discipline is imposed, the weight of arbitral authority supports a conclusion that the Predisciplinary bearing has become common practice and its denial infringes on the due process rights of an employee to such an extent as to require that a grievance be sustained based on this procedural consideration alone.

The Union steward and the Union president who handled this grievance for the Union both insisted that no pre-disciplinary bearing was ever held. The testimony of Timothy Loftin, the maintenance manager is inconsistent regarding such a meeting. Although he first indicated that the hearing was conducted sometime during the month of September 2001, under the skillful guidance of the Postal Service Advocate, he attempted to characterize a meeting which he had called investigative, as a pre-disciplinary hearing. If the pre-disciplinary hearing was held in September as he first stated, it would have been invalid because it would have occurred subsequent to Mr. Loftin’5 Proposal For Disciplinary Action, dated August 17, and his Proposed Removal Letter which was dated August 31,2001.

Both the Union steward and Mr. Loftin testified that they met twice concerning this grievance prior to the filing of this grievance. According to Union steward, Oscar Moore, and his testimony was not contradicted he was called into the first meeting without any notification or forewarning as to what it was about. According to both Mr. Loftin and the Union steward, it was during this meeting that the Grievant and the Union were informed that there was a problem with the Grievant’s application as reflected in an investigative report the Postal Service had received from the US Office of Personnel Management. During the meeting the Grievant was informed the meeting was investigative and he was questioned regarding the response he had given to a question on the application. The grievant informed the maintenance manager of his claim that he had been instructed by Postal Service personnel that it was okay to provide a negative answer to the question regarding his criminal background. Subsequently, Mr. Loftin questioned the personnel named by the Grievant to determine if they would corroborate the (3rievant’s explanation of his reason for completing the application as he did. These occurrence were further corroborated by the notes of Mr. Loftin taken during the meeting and presented at arbitration.

According to Mr. Moore, the Union steward, the next and only other meeting with management prior to the Notice of Removal was on or about August 31, 2001 and it was at this meeting the (3rievant was given the Notice of Removal. In spite of the efforts of the Postal Service to characterize the first meeting described above as a pre-discipline bearing, it obviously was not. It was clearly investigative. The pre-disciplinary meeting must be held after management has conducted its investigation and before it has made a final decision to impose discipline or what that discipline will be. In Case No. G94C-4G-D- 98129758, I quoted from a decision of Arbitrator Otis King in his Case No. G94C-1G-D- 98058093 in which he stated:

A pre-disciplinary hearing ought to be more than a due process formality engaged in perfunctorily as a matter of show for the record before an employee who has already been found guilty, is formally discharged. Unfortunately, in all too many situations, that is precisely what it is. In this case, it appears that Management decisions, made earlier, had already become set and, thus those in charge saw no need to give him an opportunity to be heard before those decisions were executed. When procedures which are normally a part of the process and have come to be relied upon by employees charges [sic] with disciplinary offenses, even though not mandated by the collective bargaining contract, are summarily omitted, it does violence to the concept of due process.

Arbitrator King further concludes that the failure of management to hold a Predisciplinary interview where it is possible and where such an interview may have produced information of which the Postal Service was unaware, such failure is fatal. I agree with the rationale of the Arbitrator and find it fully applicable to the facts of this case. However, I do not find it necessary to determine that such an interview would have produced information of which the Postal Service is unaware before it becomes fatal to the case. Due process demands that the interview be held in order to determine if such information is available.

STEP 1

The Union argues that the Postal Service committed procedural error when the Grievant’s immediate supervisor summarily disposed of the grievance at that stage. The testimony that the supervisor, Charles Mason, did not consider the grievance at Step 1 is not contradicted.  According to the Union, the supervisor’s comment was, “let them handle it at the next level.” Such an approach raises a serious question regarding the authority of the Step 1 supervisor to resolve. A lack of authority would be a violation of Article 15. Section 2. Step 2. (b). At the very least, a refusal to seriously consider the grievance violates the intent of the parties to settle the grievance at the lowest possible level.

Step 2

The testimony of both the Union president and steward are in direct conflict with that of the maintenance director. Steward, Oscar Moore stated he was not involved in the grievance after Step 1. The Union president prepared the appeal and he (Oscar Moore) signed it. However, he did not participate in a Step 2 meeting or ever receive Step 2 decision and to his knowledge, neither did any other Union official. Union president, William Reed stated he handles a large number of grievances at the Waco, Texas facility. It is customary to send the Step 2 Appeal to the Plant Manager. That was done in this case. Upon receiving a Step 2 Appeal, the plant Manager is expected to designate a Postal Service Step 2 representative and notify him. He did not receive a designation of a Step 2 representative from the plant manager in this case nor was a step 2 meeting ever held. He appealed the grievance to Step 3 but it was returned to Step 2 for an appeal to arbitration.

Mr. Loftin testified that a Step 2 meeting was held on September 20,2001. In support of his1 testimony, he submitted a copy of a Step 2 Grievance Summary, PS Form 2609, which he had completed. Normally, this form is a part of the grievance package and is submitted by the parties as part of the documents considered during the Steps of the grievance procedure prior to arbitration. In this case, the Union alleges there has not been a Step 2 meeting and the Form 2609 submitted bad never been presented during the grievance process. Beyond this belated submittal, there is no other documentary evidence that a Step 2. Meeting was ever held.

Consequently, the determination of whether one was in fact held, is dependent on the credibility of the witnesses. When it is considered that in this case, the procedures followed by the Postal Service have been extraordinary, to say the least, the facts support a conclusion with regard to credibility  which is heavily weighted in favor of the Union’s positions. This is especially so when it is also considered that the burden of proof is on the Postal Service regarding the proper procedures being followed. This entire matter has been handled by one Postal Service Manager, Mr. Loftin. While I do not find any contractual prohibition against that fact, it is unusual and vest in Mr. Loftin a self serving interest in the outcome. To review, the Step 1 supervisor, who was subordinate to Mr. Loftin, made no effort to settle the grievance. The management investigation, the alleged pre-disciplinary hearing and the alleged Step 2 meeting were all under the auspices of Mr. Loftin. I find the circumstances such that the Postal Service has not met its burden of proving that the proper procedures guaranteeing the Grievant due process were followed.

No arbitrator likes to decide a case based on procedural shortcomings. This is especially true where the merits do not favor the prevailing party. However, in Case No. G98T-1G-C- 9702895, Arbitrator Ernest Marlatt, set out what is a reasonable controlling principle to be applied to situations in which the Postal Service fails to respond at Step 2. He stated;

The Union has no contractual right to insist on a Step 2 hearing and or a Step 2 answer. of course by failing to respond at Step 2, the Postal Service is deemed to have admitted that (1) the grievance is timely, and (2) the relevant facts recited in the grievance are true.

Adherence to this postulate renders the merits of the case of the Postal Service moot ~ when it is determined that there was a failure to hold a Step 2meeting or respond to the appeal.  In Case  No. G94T-JG-C 97028953, In response to the above statement of Arbitrator Marlatt, I said:
While I agree with Arbitrator Marlatt, in principle, it must be noted first that the contract  is clear that a failure to-raise the issue of timeliness at Step 2 amounts to a waiver of that contention. However, an admission that the relevant facts recited in the grievance are true     because of a failure to raise the relevant facts and issues in a detailed Step 2 response can be corrected by the parties at Step 3. At that level, the contract contains two provisions which would allow the Postal Service to address its failure to respond at Step 2, which failure could amount to a due process violation. First, the grievance can be reverted to Step 2 for complete development of the facts and issues or second, the Postal Service can comply with the provisions of Article 15.2, Step 3 (c) and provide, at Step 3, a detailed statement of the facts and issues which support its reasons for denying the grievance.  In this case, the Postal Service did not respond at either Step 1,2 or 3.

CONCLUSIONS

While it is clear the Grievant knowingly falsified his answer to a material question on his application for employment, the multiple failures of the Postal Service to follow proper procedure in the disciplinary and grievance process must result in the grievance being sustained.

The entitlement of the Grievant to the protection of the processes established by the National Agreement between the parties is not dependent on an ultimate determination of the Grievant’ s guilt or innocence of violations of rules and regulations of the Employer. Rather, it is based on the right of the Union to insist that the Postal Service adhere to agreed procedures in the implementation of the grievance process.

AWARD

THE GRIEVANCE IS SUSTAINED. The Grievant is to be reinstated and made whole. He is to receive back pay and such seniority and benefits to which he would have been entitled had he not been discharged. To the extent permitted by law, all records of the discharge are to be purged from his personnel file.


Gary Kloepfer
National Representative at Large


 

MMO-057-02    -    Safety Issue for Postal Pak Container Loaders and Unloaders: Intregrated
        Mail Handling System (IMHS)

The purpose of this Maintenance Management Order (MMO) is to inform sites with an IMHS Postal Pak Container Loader or Container Unloader of a potential safety hazard. Bare electrical wiring due to cable wear may expose employees to electrical shock hazards or injuries.

All sites with either a Loader or an Unloader should check all cable routing for cable jacket wear. Sites should repair or replace cables as appropriate and reroute them so they are no longer in contact with moving parts or surfaces.

Common causes of cable wear occur when parts are replaced. Sometimes the cables are not reinstalled in a manner that prevents contact with moving surfaces. Unnecessary cable wear may also occur because cable tie wraps simply break with age and drop the cables onto moving parts causing cable jackets to wear through.

Discovery of any cable damage or deterioration requires immediate attention!


Gary Kloepfer
National Representative at Large


This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact one of us or your National Business Agent.   

In this case the Postal Service created a new Preferred Duty Assignment with split nonscheduled days.  The Union argued that the Postal Service violated Article 8 Section 2 and that the Postal Service had the burden of proof to demonstrate that it was not practicable for the position to be scheduled with five consecutive work days.   Specifically, the evidence revealed that there were six custodians working at three stations. The Service could easily have staffed these stations so there would always be one custodian working at a station and every custodian would have consecutive days off.

REGULAR ARBITRATION PANEL

Case Number:    H98T-1H-C-00075821

For the Union:         Terry Martinez

Date of Award:     August 5, 2002

FACTS OF THE CASE:

The basic facts giving rise to this case are not in dispute. The Macon post of duty had two stations-the South Macon Station and the Arlington station. There were four career custodians assigned to these two stations. One of these custodians worked what was called the relief position. Subsequently, the Service created a new station which was called the North Macon (Zebulon) Station. Many of the carriers at the Arlington Station were moved to the North Macon (Zebulon) Station. When the Service opened the North Macon Station, it hired two additional custodians. One of the new custodians hired at the North Macon station was given Saturday and Sunday as off days. The other custodian hired at the North Macon station was given Sunday and Friday off.

On January 13, 2000 the Union filed a grievance alleging that the Service had violated Article 8, Section 2.C when it created a custodian position at the North Macon Station with Sunday and Friday off The Service responded at Step 1 by making the following points:

It is managements [sic] desire to maintain two custodians each day at North Macon Station to mirror the operation at South Macon Station. To accomplish this one job was posted as Saturday, Sunday off and the other was posted as Sunday. Friday off North Macon Station will not be open on Sundays. ... Having two custodians on duty each day also allows one custodian to cover for the other. If Sunday and Monday were used as off days at North Macon Station there would only be one custodian on Mondays, which is normally a heavy traffic day. If that one custodian should call in there would be no coverage. The station manager would be forced to call the P&DC on 451 College Street to ask for a custodian, disrupting that operation there.

The Union appealed to Step 2. The Service denied the grievance. In the relevant portion of its Step 2 response, the Service argued that it had not violated the contract:

No violations of the National Agreement have occurred. A chart was furnished to the union 5howing a final staffing decision. This decision shows even distribution of staffing across  the board. The Unions [sic] whole argument is based on the definition of the word practicable.

The chart to which the Service made reference was included in the grievance file. That chart lists the current staffing and the proposed staffing. It also contains text regarding the decision which reads as follows:

The Macon P&DC has given due consideration to public interest, cost, efficiency, employee safety and availability of employees when evaluating the staffing requirements for Zebulon Branch.

With the addition of Zebulon Branch there will be 6 career custodial positions between South Macon Stations, Arlington Station and Zebulon Station. The objective was to staff each station consistently on a daily basis. With the movement of carriers out of Arlington there is an anticipated custodial work hour surplus. ft was decided that covering Zebulon Branch with the second custodian from Arlington Station on Friday was the best scenario for effective and efficient staffing. This particular job is currently split between Arlington and South Macon providing rest day coverage at those facilities. The decision to shift job assignments from Arlington Station on Friday to Zebulon Branch providing rest day coverage at Zebulon Branch offers the most plausible solution.

The grievance then proceeded through the arbitration procedure without resolution and the Union invoked arbitration. The undersigned arbitrator was assigned to hear the case. On July 30, 2002 a bearing was held in Macon, Georgia. Each party was ably represented and given a full opportunity to call witnesses, cross-examine witnesses, and submit any relevant evidence. At the hearing, the parties agreed there were no issues of timeliness or arbitrability. By agreement, the parties made closing arguments.

ISSUES

Whether the Service violated Article 8, Section 2 C.?


POSITION OF THE PARTIES


The Union position is as follows: Article 8, Section 2 C. reads in its relevant portion as follows:

The employee ‘s normal work week is five (5) service days, each consisting of eight (8) hours, ... As far as practicable, the five days shall be consecutive days within the service week.

The Service has the burden of proof of demonstrating that it was not practicable for the position to be scheduled with five consecutive work days, and the Service has not met its burden. The evidence demonstrates it was practicable to schedule each custodian with consecutive days off Specifically, the evidence shows that there were six custodians working at three stations. The Service could easily have staffed these stations so there would always be one custodian working at a station and every custodian would have consecutive days off

The Service argues that it was convenient to have a position with non-consecutive work days. This argument fails to demonstrate it was not practicable.

The Service’s position is as follows: Article 8, Section 2 C. states that employees will be scheduled five consecutive days “as practicable”. The Union interpretation of Article 8, Section 2 effectively eliminates the phrase “as practicable.” The Service needed two custodians at each station on each working day of the week. This could only be accomplished by assigning one of the custodians at the North Macon Station a schedule with non-consecutive days off.

OPINION

The interpretation of Article 8, Section 2.C. has been the subject of many arbitration decisions. After reviewing these cases, I agree with those arbitrators who have held the language of Article 8, Section 2 C. requires the Union to present a prima fade case that scheduling five consecutive days is “practicable”. Once the Union has established a prima facie case, the burden of proof shifts to the Service to demonstrate that scheduling an employee for five consecutive days is not “practicable”. See Arbitrator Marlatt’s decision in Case No. S4C-3W-C13587 (1987) and Arbitrator Gold’s award in S7V-3U-C 35604 (1992)’

In meeting its burden of proof the Service must do more than make general assertions of efficiency; the Service must present evidence that scheduling an employee for five consecutive days was not “practicable.” An excellent example of how the Service can meet this burden can be found in Arbitrator Ables’ award in E7C-2G-C 6630 (1991).

The precise meaning of the term “practicable” has consumed considerable time and paper. Black’s Law Dictionary defines practicable as meaning something which “may be done, practiced or accomplished; that which is performable, feasible, possible;”. The synonym most often offered for practicable is feasible.

The Union interprets “practicable” as meaning if at all possible. This definition effectively requires the Service to schedule all positions with consecutive days off. If this is what the parties bad intended, they would not have included the term “practicable”.

The Service interpretation of “practicable” gives the Service considerable discretion. This definition is inconsistent with the generally accepted meaning for practicable and it effectively excuses the Service from scheduling employees with consecutive days off, thereby making Section 8, 2.C. meaningless.

For these reasons, I agree with Arbitrator Odom’s statement in G94C-4G-C 98020654 (2000) that the correct interpretation of “practicable” falls between the interpretations which the two parties have submitted.

Here the Union has demonstrated that scheduling employees five consecutive work days was “practicable”. The position in question was a custodial position which did not involve work which had to be completed within certain time frames. The Union demonstrated that the Service could grant consecutive days off and still have one custodian at each station every working day of the week.

Having established that the Union met its burden of proof and demonstrated a prima facie case, the Service has the burden of rebutting the Union’s case.

To rebut the Union’s case, the Service made two arguments:

1) Scheduling the position with a Sunday and Friday off was necessary to ensure there were two individuals at each station each working day of the week which would allow one custodian to cover for the other; and
2) Sunday is a day off which means that to provide a custodian with consecutive days off, one must schedule either a Saturday or Monday day off. Under the scheduled used, there were already three custodians off on Saturday so Saturday was not available as a day off Scheduling the custodian with Monday as a day off was not possible because Monday is the heaviest work day. Consequently, the Service needs two custodians at every station on Monday. As a result, the Service could not schedule the custodian with either a Saturday or Monday day off, so the Service provided the next best alternative to having two consecutive days off by scheduling the employee with Sunday and Friday days off.

In my judgment, the most significant fact in this case is the schedule which existed when there were only two stations-South Macon and Arlington. According to that schedule, the Arlington station had one custodian on Monday. Based on the facts in the record, the North Macon station consisted largely of carriers who had been moved from Arlington. This means that at the time the Arlington Station had only one custodian on Monday, the Arlington Station was far busier than the North Macon Station was when there were three stations. If one custodian could handle the duties in the Arlington station on a Monday when there were only two stations, it appears to me that one custodian could handle the duties at the North Macon Station when there were three stations.

This leaves the coverage question. I recognize that the North Macon Station is approximately 13 miles from the Arlington station and that this means that any replacement would take about an hour to go to the North Macon station, but there was no showing that having a custodian on site all the time is critical to the public interest, to efficiency or employee safety. Specifically, there was no showing that custodians have duties which required immediate attention and that having redundancy in the form of a second custodian on site was critical. Similarly there was no showing that scheduling the custodian with non-consecutive work days would adversely affect the costs of the Service.

I fully agree with the Service’s contention that it is preferable and convenient to have two custodians at each station each day but the contract requires the Service to show more than it is preferable and convenient; the contract requires the Service to show it is not “practicable” to schedule five consecutive work days. For the reasons stated above, the Service has not met this burden.

AWARD

For the reasons stated above, the grievance is granted. The position will be assigned five consecutive work days.

Gary Kloepfer
National Representative at Large


This award is presently not in the SEARCH system.  Should you need a hard copy of the award, then please contact one of us or your National Business Agent.   

In this case the Postal Service issued and employee an Emergency Suspension and a subsequent discharge for allegedly making threatening remarks towards members of management.  The arbitrator sustained both grievances by ruling that the words of the grievant were not threatening and that the Postal Service failed to consider the mitigating factors prior to making its decision to discipline the grievant.

The arbitrator also provides clear logic regarding the application of the timeliness principles of Article 15.  In this case the arbitrator correctly analysized the grievant’s handicap, dyslexia, and found that it offset the Postal Service’s reliance on Article 15 time limits as a reason to dismiss the grievance was faulty. 



CASE NUMBERS:    J98T-4J-D-00117323 and J98T-4J-D-00211506

ARBITRATOR:    Robert J. Mueller

FOR THE UNION:    Donald L. Foley


Award Summary:

The Postal Service did not sustain its burden of proof to establish that the grievant uttered a threat toward management to where he posed a threat of injury to himself or others within the application of Article 16.7 of the Master Agreement. The grievance is sustained and the grievant is to be made whole. The grievance filed contesting his removal from employment is not barred from resolution on its merits because of being untimely filed. The failure on the part of management to fulfill its obligations and responsibilities toward the grievant estopped management from asserting timeliness as a defense. The removal is found to be without just cause and grievant is to be re-instated to employment and made whole for all losses sustained as a result of the removal. The disciplinary record of the grievant shall reflect an “official discussion” involving the subject matter of the discipline.

ISSUES

1.    Did the postal Service violate the Master Agreement when it placed the grievant on emergency placement in off duty status on March 6, 2000, If so, what is the appropriate remedy?

2.    Is the grievance that was presented at step I on 8-10-00 barred from resolution on its merits on the basis of timeliness? If not, then,


3.    Was the removal of the grievant by Notice of Proposed Removal dated March
20, 2000, in violation of the National Agreement? If so, what is the appropriate remedy?

FACTS

The grievant was hired into the Postal Service in 1982 from a vocational rehabitational handicapped program. His condition was diagnosed as dyslexia. Lie worked as a custodial maintenance employee for approximately ten years in the Independence, Missouri post office before transferring to the Jefferson City post office in 1993. At all times material to the facts of this case he was employed at the Jefferson City post office.

On March 6, 2000, one of the grievant’s co-workers, Clerk Sharman Lepper, reported to management that she had overheard the grievant say, “I’m going to pop all management’s fucking heads off.” Station Manager Don Knoth shortly thereafter questioned Grievant as to whether he had in fact said what had been reported to him by Lepper. The grievant denied having made such statement and denied having threatened any management personnel. At that point Knoth placed the grievant in an emergency off-duty status and lie was escorted off the premises. The next day a letter of Emergency Placement in off-duty status was prepared, dated March 7. 2000, and mailed to the grievant. Subsequently on or about 3-1 5-02 Mr. Bax requested and received a copy of the emergency placement letter. Bax testified that at that same time he requested that lie be furnished all documents that were to be sent to the grievant. He also stated that he requested to know what management's intentions were with respect to the grievant and filed a request for information & documents on 3-15-00 wherein lie requested the “threat assessment report and all documents that were sent to Mr. Harrison and intentions for him”. The grievant contacted the union and a grievance was initiated at step I on 3-15-00. The grievance alleges as follows:

“Management suspended Mr. Harrison on 3-6-00 for so called threats to management. Mr. Harrison feels this is no more than retaliation for a previous arbitration decision and a recently filed grievance. Mr. Harrison feels lie has been harassed ever since he returned to work after his arbitration decision. MR. HARRISON DID NOT THREATEN ANY MANAGEMENT.”

A Notice of proposed Removal, dated March 20, 2000, and concurred in by John M. Sertichi on 3-23-00, was received by the grievant by certified mail as shown by the signature of one, Mary Harrison on March 27, 2000. Another letter dated March 20, 2000, tithed Notice of Proposed Suspension setting forth the effective date of his removal as being April 28, 2000, was sent to the grievant by certified mail and was shown as having been signed for as received by the grievant personally on 4-19-00. The step 2 meeting was held on the suspension grievance on March 24, 2000 between union steward, Brian Bax and John M. Sertichi, the step 2 designee.

Bax testified that sometime in May, 2000, Harrison called him and inquired about the status of his grievance and asked Bax if lie had received all the papers that lie, Harrison, had received. Bax advised Harrison that he had not received any documents subsequent to the suspension letter lie had received on 3-15-00. When Bax became aware of the Proposed removal letter dated March 20, 2000, lie recognized that more than 14 days had elapsed since Harrison had received it, and being relatively new as a steward lie concluded it was futile to file a grievance. Quite some time later in conferring with the National Business Agent, lie was advised to file a grievance on the removal. He then initiated a step I grievance on 8-10-00. Management raised an issue of timeliness at the step 1 meeting and again did so at step 2. The matter thereafter was brought to arbitration in this case.

EMPLOYER POSITION:

The Postal Service contended management's actions on March 6, 2000, in placing the grievant on emergency placement in off duty status did not violate the Master Agreement. They cite the following portions of Article 16.7,

"An employee may be immediately placed on an off-duty status (without pay) by the
employer, but remain on the rolls where the allegation involves  intoxication      where
the employee may be injurious to self or others.”

Donald Knoth, A/Manager Customer Services, testified that when employee Lepper reported the alleged statement made by the grievant, she appeared to be visibly upset and afraid. He contended Lepper regarded grievant’s statement as a threat because of the tone of his voice and his demeanor when lie said it. Knoth testified that lie considered the alleged statement by grievant to he a threat against the safety of management within the intended application of Article 16.7 of the Master Agreement.

The postal service contends management had just cause to place the grievant on emergency placement under the facts of the case. The postal service takes allegations of threats very seriously. Knoth was faced with an allegation of what on its face was a serious threat against management. He had to take action to avoid and prevent a potential problem. He simply could not take a chance on the report of the alleged threat by grievant being other than a serious threat. The emergency placement of grievant should be sustained.

After issuing the suspension, Knoth investigated the matter further mid talked to Jenny Simpson. another fellow employee. The first paragraph of the Notice of Proposed Removal describes the involvement of Simpson as reported to management as follows,

“On March 6, 2000, at or about 2:20 PM, full time clerk Jenny Simpson reported that you were in the break room when Supervisor Larry Hall entered and asked if you were on your authorized break. You replied to Hall that you were behind schedule, and lie subsequently heft. Simpson overheard you say “.. . goddamn management...” Simpson also heard you say that management better stay off your ass.”


Knoth did not talk to the grievant after the one time on March 6I~ when lie asked grievant if he had in fact made the statement reported by employee Lepper. Knoth testified that because grievant denied making such statement, further discussions with him would be useless.

On March 20, 2000, a Notice of Proposed Removal was prepared in which lie was charged with threatening  management officials. The document was concurred in and signed by John M. Sertichi on 3-23-00. It was mailed certified mail and receipt was signed for by one “Mary Harrison" on 3-27-00. A grievance was initiated on the removal action on 8-10-00. Such grievance is clearly untimely filed. Article 15.2 step I provides in relevant part,

(a)    Any employee who feels aggrieved must discuss the grievance with the employee’s immediate supervisor within fourteen (14) days of the date on which the employee or the Union first learned or may reasonably have been expected to have learned of its cause..

Management also points to Article I 5.4.B which provides in relevant part,

“B. the failure of the employee or the Union in Step 1, or the Union thereafter to meet the prescribed time limits of the Steps of this procedure, including arbitration, shall be considered as a waiver of the grievance...”

Under the 14 day provision, the grievance would have had to have been filed no later than April 11,2000, in order to have been timely. It, however, was filed approximately 4 1/2 months from the date received by the grievant. The postal service requests that the grievance be dismissed on the basis of being untimely initiated at step I. In the alternative, they contend  the removal should be sustained as being for just cause. The issuance of threats against fellow employees in the workplace is clearly just cause for removal.

UNION POSITION:

The union argues in the first instance that the emergency placement was without cause and violated the National Agreement. There must be more that just an unsupported allegation by one employee against another to justify putting an employee on emergency placement. The union cites the case of Metz  v. Department of Treasury, 780 F.2d 1001 (Fed Cir. 1986~) as support for its argument. In such case two employees were overheard casually discussing the fact that a third employee had threatened to kill his superiors. The union contends the facts of such case are very comparable to the facts in this case. The court held in Metz that there was not sufficient just cause to remove the employee from employment.  They further said,

“We direct the board to consider the following evidentiary factors in deciding whether an
employee threatened  his superiors or co-workers:
(1)    The listener’s reactions;
(2)    The listener's apprehension of harm,
(3)    The speaker’s intent;
(4)    Any conditional nature of the statements, and;
(5)    The attendant circumstances.”

The union argues that if one applies the above evidentiary factors to the facts of this case, a reasonable person would readily conclude that the alleged statement attributed to the grievant was not a serious threat. Placing the grievant on emergency placement was without just cause and therefore was not proper under the terms of the Master Agreement.

The union contends the grievance should not be barred from resolution on its merits for a number of reasons. First, they contend the facts suggest that management deliberately engaged in actions that were intended to heave the grievant in the dark as to his rights and obligations so as to be able to defend their actions on the basis of a technicality, i.e.; timeliness. Management was aware from the start that the grievant had dyslexia. They acknowledged that since the day of his hiring and continuing throughout his long tenure with the post office, whenever instructions or written directives were issued, arrangements were made to have supervisors or fellow employees make sure that the grievant understood the instructions and directives. The evidence is that the grievant had no problem performing his work in a satisfactory manner. They made sure at all times, however, that lie understood what his duties were and what was expected of him. They did not rely on his understanding written directives or orders.

Despite such clear understanding of the grievant's limitations, management mailed him the Notice of Removal and made absolutely no effort to telephone him or contact him in any way to explain what the Notice of Removal meant to him. Union steward Bax, being fully aware of the grievant’s condition, requested in writing that all documents that were to be sent to the grievant, also be sent to him. Despite such written request, none were sent to him. The union states in its written opening statement of the case as follows,

“In spite of Mr. Bax’s expressed interest in protecting the rights of the Grievant and in spite of the fact that the Step 2 meeting on the emergency placement grievance did not occur until March 24, 2000, the Service did not disclose to this steward the March 20. 2000, Notice of Removal it had prepared and sent to the Grievant. Mr. Sertichi, the Jefferson City Postmaster acting as Step 2 Designee for the emergency placement grievance, had just acted as the concurring official for the removal action only days before his grievance meeting with Mr. Bax. Yet he hid the removal action from the Union .“

Their actions in sending him a removal letter, hiding it from the union, and failing to thereafter contact the grievant and make sure he understood what the removal letter meant to him, served to effectively deny the grievant his due process rights.

The union contends the evidence supports the conclusion  that management “deliberately set up the grievant.” (taken verbatim  from the Union's oral summation).  They point to the fact that on July 1, 1999, an arbitration decision set aside a removal of the grievant, reduced the removal to a seven days suspension and reinstated him to employment. On 1/11/00 a grievance was filed by the union as a class action grievance alleging that management had been performing bargaining unit work in violation of the labor agreement. The grievance was initiated at the request of Rick Harrison, the grievant in this case. It was resolved at Step I with management  conceding the violation and overtime pay being issued to several employees as a result. The grievant was not one of the employees who received overtime pay as part of the remedy. Three other employees were the recipients under the remedy. Larry Hall, grievant’s supervisor, was directly involved in  the circumstances and served as the Step 1 grievance management representative. Steward Bax testified that following resolution of that grievance on 2/23/00, Supervisor Hall was “mad” and stated to Bax that, “he’ll be suspended within a mouth.” Bax also testified that following such incident, Supervisor Hall rode the grievant pretty hard and got on him for minor things. As a result of Hall’s statement to Bax, lie advised the grievant to watch his backside.
The union contends such facts establish a strong animus by management against the grievant and served as the motive for management set up the grievant for removal.

The Union also contends management failed to conduct a thorough investigation before taking action. They failed to investigate and recognize that the grievant had a clear discipline record for all of his bug term of employment with the exception of the 7-day suspension resulting from the 1999 arbitration. Management also failed to investigate and recognize that the grievant had no record of violence of any sort at any time during his term of employment.

DISCUSSION

1.    Did the Postal Service have just cause to place the grievant on emergency leave?

In my opinion, the Postal Service did not have just cause to place the grievant on emergency leave on May 19, 2000.  In the first instance, employee Lepper did not go directly and immediately to management and report the statement allegedly made by the grievant. The alleged statement was made to the station manager by a supervisor who “overheard” the grievant recite the incident to another employee in a casual conversation.  If Lepper had considered the alleged statement by the grievant to be a real and imminent threat, why didn’t she immediately go and report it to management.?  The fact that she did not go and directly report it detracts from the testimony of Station Manager Keith that Lepper appeared to be visibly upset and afraid when he summoned her in and she reported the alleged statement to him. Union Exhibit #t3 is a signed statement by Lepper in which she stales that she would never have told management of the incident because she did not feel he was actually threatening management.  Such exhibit is dated 3-21-00 and it is initiated as received by management on 3-24-00.

It seems to me that the factors of consideration set forth by the court in METZ, supra, should have been given some consideration before management leaped to the conclusion that the alleged statement was a real threat against management. They apparently did hot consider the absence of any history of past violence or threats of violence by the grievant during his approximate 20 years of employment. They apparently did riot consider his otherwise good discipline record. The existence of the prior arbitration loss and the Step 1 grievance resolution, along with the alleged statement by Supervisor Hall (which was not refuted) raises a rather strong inference that management did in fact harbor a desire to rid itself of the grievant as an employee and as a result, acted in haste. I find the facts insufficient to support issuance of the emergency placement on March 6, 2000.

2.    Is the grievance filed on the Notice of Removal dated March 20, 2000, barred from resolution on its merits because of timeliness?

There is no dispute about the time lines involved. The Notice of Removal was dated March 20, 2000, and is shown to have been received by Mary Harrison, signing for receipt thereof on behalf of the grievant. The grievant must therefore be considered  to have received the Notice of Proposed Removal on March 27, 2000. Fourteen days from such date would be April 11, 2000. The 11th would have been the 15th day. There is no disputing the fact that under the literal application of Article 15.2 Step 1 of the National Agreement, the grievance is untimely in that it has not been appealed to Step 1 as therein required.

There are, however, exceptions to the literal amid specific application of such timely requirement. One exception involves the circumstances set out in the following part of Article 15.4 B, which provides.

“…However, if the employer fails to raise the issue of timeliness at Step 2, or at the step at which the employee or Union failed to meet the prescribed time limits, whichever is later, such objection to the processing of the grievance is waived.”

Such waiver exception is a contractual one. In this case management did raise and objection as to timeliness at Step 2. Numerous arbitration can be found however, where arbitrators have found a timeliness defense waived in the absence of any contract language of a similar nature where the party raising the defense has not raised it as a defense at the earliest available opportunity.

A second circumstance in which arbitrators have found timeliness objections to have been waived is where the parties have had a long and consistent past practice of not enforcing time limits against each other. In such case it has been held that they can be enforced only after a party advises the other in specific terms that hereafter, time limits will be strictly enforced.

The facts of this case fit into neither of the above described exceptions. I am persuaded, however, that the facts amid circumstances of this case justify amid warrant an exception based on its unique facts amid circumstances.
First, the grievant has dyslexia amid there has been a long past practice of recognizing such condition and assisting and explaining any written directions or instructions to the grievant to assure that he understands such written directives amid instructions. In  this case, management made no effort to contact the grievant and “make sure” that he understood the written Notice of Proposed Removal. In fact, the evidence suggests that management engaged in efforts to avoid the possibility that grievant would have assistance in understanding the notice. A number  of facts tend to support such possibility. First, management ignored the written request of the union steward for copies of any documents to be sent to the grievant. None were sent to the steward. Secondly, the management step 2 designee, who met with the steward on March 24, 2000, did NOT tell the steward that he had signed the Notice of Proposed Removal the day prior, to wit; March 23, 2000. The steward had no knowledge of 11w Notice of Proposed Removal having been issued until almost two months later when the grievant inquired  about the status of his emergency placement grievance.


While management's actions in handling the matter may have been done in good faith and without intent to entrap the grievant into a timeliness technically, the totality of the evidence strongly suggests otherwise. The attributed statement of Supervisor Hall was that the grievant would be suspended within a month. Such prediction was fulfilled. Such statement was not refuted. Such attendant circumstances are some of the factors the court referred to in the METZ case. Consideration of such factor along with the rest of the facts in totality, leads me to conclude that the cause of grievant failing to imitate a grievance within 14 days of the date it was delivered to him was caused by the actions and failures on the part of management. Management's actions and failure to take required actions were causal in all respects to the fact that the grievance was not filed until well after the 14 days had passed.


While the employer will argue that it was also filed long after the union, by steward Bax, became aware of the removal, such circumstances would not have arisen if management had provided a copy of the removal document to the steward as requested in a timely, or if the Step 2 designee had verbally advised the steward that one been concurred in as of the day prior to their step 2 meeting. If management had responsibly performed and supplied timely notice to the steward, Bax would have had the opportunity to make sure the grievant understood what was happening, what his rights were, and he could then have been able to timely initiate a grievance on behalf of the grievant. Steward Bax could then have done what management should have done in the first place, i.e.; make sure the grievant understood the writing that was sent to him.


find the actions of management to be a bar against their right to raise the issue of timeliness against a resolution of the grievance on its merits. They are estopped from raising such defense because of their actions in causing the grievance. to be filed after expiration of the time limits set forth in Article 15.2 (b) of the National Agreement.  Such finding is also required so as to avoid a gross injustice.

3.    Was the removal of the grievant for just cause?

The answer to such question is “NO. The same consideration that were applied to the just cause issue involving the emergency  placement are applicable to the removal  issue. The only additional facts developed by the investigation by management involved an interview of another employee, namely, clerk Jenny Simpson. The information received from Simpson is set forth in the first paragraph of the Notice of Proposed Removal and is as follows,

“Omi March 6, 2000, at about 2:20 PM, full time clerk Jenny Simpson reported you were in the break room when Supervisor Hall entered and asked if you were on your authorized break. You replied to Hall that you were behind schedule, and he subsequently left. Simpson then overheard you say, “...goddam, management...." Simpson has also heard you say that management better stay off your ass.”

Such statements attributable to the grievant would seem to be supportive of the treatment of the grievant by Supervisor Hall as described by steward Bax. Bax testified that Hall was on the grievant for minor things and was out to get him as inferred by his statement that grievant would be out of there within a month. Even if explainable, freedom of speech does riot give one total freedom to express derogatory and profane utterances against managerial employees in the workplace. If the grievant felt he was being discriminated and retaliated against for winning an arbitration and a grievance, is recourse was to file a grievance. Verbalizing his frustration in the workplace my be misinterpreted and considered inappropriate and in some situations may warrant discipline. In this case, I think the grievant should be considered as having been given an official  discussion and warned to refrain from verbalizing profaned dissatisfaction in the workplace about management’s treatment of him.

Such statements attributed to the grievant, however, do not serve to escalate the alleged statement, “I’m going to pop all management's fucking heads off’, to that of a serious and imminent threat.
Both parties presented a number of arbitration awards to the arbitrator for perusal. I have read and considered all of the cases presented. I cannot  say that I disagree with any of them, however, a number of the cases presented by either side contained facts and circumstances that have relevant bearing or application to the unique facts of this case. This case stands on its own. 

AWARD

USPS grievance number J98T-4J-D, 00117323 APWU grievance number  031500 involving the emergency placement is granted. The emergency placement action shall be expunged from his record and lie shall be made whole for any losses incurred as a result of the emergency placement.

USPS grievance number J98T-4J-D-00211506 APWU grievance number 0810000 involving the Notice of Proposed Removal is granted. The removal is reduced to an “official discussion”. The postal service is directed to re-instate the grievant to his former position of employment and make him whole for any losses he may have suffered as a result of the removal. His record shall be expunged amid cleared of all mention of the emergency placement and the removal, except for the official discussion.


Gary Kloepfer
National Representative at Large


This award is not in the SEARCH system.  It is an EXPEDITED award and is not citable as arbitrable precedence.  However the arbitrator’s logic and reasoning in this case is worth presenting to the membership.

In this case the Postal Service assigned DBCS operational maintenance to a Level 7 MPE during the absence of an Electronic Technician.  The arbitrator ruled that the grievant was entitled to higher level pay for performing operational maintenance for automated equipment with no Electronic Technician on duty.  In addition the arbitrator expresses excellent logic in dismissing the Postal Service’s argument regarding the amount and type of work performed by the grievant.  In this case the Postal Service claimed there were no records due to the passage of time.  The arbitrator clearly rejected this position as the Postal Service is the “keeper of the record” and the grievant should not be penalized due to the failure of the Postal Service to maintain records.


Case:    C90T-1C-C-96012133
Arbitrator:    Carrie G. Donald
For the Union:     Vance Zimmerman

AWARD SUMMARY

The grievance of George Donaldson is sustained. The record shows that the Grievant, who was a Level 7 Maintenance Mechanic at the time of this grievance, performed the work of an Electronic Technician when he answered calls and performed operational maintenance on the DBCSs throughout his Tour One work shift on September 29, 1995. The Union carried its burden of proof to show that Level 9 Electronic Technician work in the area of operational maintenance was performed in the scheduled processing window. This work was specifically designated as Electronic Technician, Level 9 work, in a National Level Pre-arbitration Settlement agreement between the parties governing this grievance. The Grievant, therefore, should be paid at the Level 9 pay level for Electronic Technicians for his work on September 29, 1995.
ISSUE

Did the Postal Service violate Article 25 of the Collective Bargaining Agreement when it failed to pay the Grievant, George Donaldson, Level 9 pay for his work on September 29, 1995?
If so, what should the remedy be?

FACTS

At the time of this grievance, the Grievant, George Donaldson, worked Tour One, from the hours of 10:30 pm to 7:00 am for the Cincinnati, Ohio Post Office. His classification was Level 7 Maintenance Mechanic. In 1998, he was promoted to the position of Electronic Technician.
The standard position descriptions for Maintenance Craft separates employees into various groups and assigns a particular grade level to each position. These descriptions set out in detail the functional purposes, duties, and responsibilities of the various positions, including the jobs of Electronic Technician, Level 9 and Maintenance Mechanic, Level 7. (Joint Exhibits 6 & 7) The present grievance focuses on the duties related to Operational Maintenance. This term has been defined by the Postal Service as follows:

513.33 Operational Maintenance
Operational maintenance (formerly called area assurance) is the use of maintenance or other postal personnel available in the vicinity of operationally critical mechanized and automated equipment to ensure minimum downtime from equipment failure. Refer to the appropriate maintenance management order (MMO) for operational maintenance staffing guidelines. (Administrative Support Manual, Joint Exhibit #3)

On September 29, 1995, Terry Edwards, a Level 9 Electronic Technician, was scheduled to work at the Cincinnati Post Office on Tour One in his classification. At the beginning of the tour, Mr. Edwards was called to work at the Mid-City Postal Office location due to a breakdown of the equipment at that location. Mr. Donaldson testified that since Mr. Edwards was called to work at another location, the Grievant was left with the full responsibility of keeping the Delivery Bar Code Sorters (DBCSs) running during the operational tour at the main post office. Mr. Donaldson testified that after Mr. Edwards left, there was no other Level 9 Electronic Technician to perform the area assurance or operational maintenance and other work associated with equipment malfunction. According to the testimony, there were approximately twenty-one DBCSs as well as other equipment that needed to be maintained so that the mail could be sorted and readied for delivery during the tour.

The Grievant’s immediate supervisor on September 29, 1995, Porter Hughes, had assigned the Grievant to work on the floor where the DBCSs were operating. Mr. Donaldson testified that prior to September 29th , Mr. Porter had paid him Level 9 pay when he had worked on the DBCSs performing operational maintenance during a run tour. The Grievant’s pay records shows that on a number of occasions prior to this grievance that Mr. Donaldson had been upgraded to Level 9 pay.

Mr. Donaldson testified that is was quite hectic for him on September 29, 1995 to move from one sorter breakdown to another and keep the machines functional so that operations personnel could continue to sort and ready the mail for dispatch. The Grievant testified that he was required to use the entire tour of duty doing area assurance, watchdogs, rebooting computers, and performing diagnostics on the malfunctioning DBCSs. Mr. Raymond Smith, an Electronic Technician, also testified that if only one person was assigned on the floor to perform operational maintenance, that employee would be continually busy, moving from one problem to the next on the DBCSs.

A work order submitted into evidence by the Union indicates that the Grievant performed work on various DBCS5 on September 29, 1995. (Union Exhibit #1) No specific work orders outlining the specific repairs performed by the Grievant on September 29, 1995 were available for the work in question. Work orders and related documentation were no longer maintained on file by the Postal Service when this grievance was remanded for consideration. Witnesses testified that the practice in place was to write out work orders for maintenance that would require in excess of a half-hour. For maintenance jobs of thirty minutes or less, individual work orders were not completed.

In describing the work disputed in this grievance, the record shows that the Postal Service was utilizing DBCS5 supplied by Martin-Marietta in 1995. These sorters, which were controlled by a menu driven computer, were plagued with a number of problem areas, including the fact that the computers on these machines often froze and became inoperable. Computer problems with the machines often required an employee to go into the operating systems in order to get a DBCS to function properly. At times, the computers had to be removed entirely and replaced by spare ones. Although the computers were menu driven, the problems afflicting the computers could frequently not be remedied through the menu but required operating systems solutions.

The Postal Service presented testimony and documentation to show that work performed on the DBCSs is not necessarily Level 9 work but also included Level 5 and Level 7 work. Therefore, according to the Postal Service, it is incumbent on the Union to prove the exact nature and duration of any tasks performed by the Grievant that is limited to Level 9 work. The Postal Service introduced the Maintenance Management Order for the Martin Marietta Delivery Bar Code Sorter which showed that a minimum Skill Level of 5 was sufficient for maintenance of this machine. (Management Exhibit #1)

    Mr. Donaldson testified that when he received his pay check, which included wages for September 29, 1995, he realized that he did not receive Level 9 pay for the work he performed on that date. The Grievant’s request for Level 9 pay for September 29, 1995 was denied by the Finance Department. Mr. Donaldson filed a grievance requesting that he receive Level 9 pay for this date. The parties met on October 8, 1995 on Step I on this grievance. The parties were not able to reach an agreement, and the matter was appealed by the Union to Step 3. When the parties met at Step 3, they decided that this issue involved an interpretative issue and was related to a grievance that was then pending at Step 4 (Q90T-4Q-C 95063809). The Union appealed the grievance to Step 4, where the parties at the National Level identified pre-arbitration settlement Q9OT-4Q-C 953809 and related questions and answers, Step 4 decision A94T-IA-C 97010097, and Step 4 decision D94T-ID-C 9710513 as being similar to the issue in the present case. This grievance, along with several others, was remanded to Step 3 for application of this settlement. This grievance was then remanded by the parties to Step 2. The parties were not able to reach an agreement at Step 2. The grievance was also unable to be settled at Step 3 and was referred for the present arbitration.

DISCUSSION

The issue before the Arbitrator is whether the Grievant should have received higher level pay for the work he performed on September 29, 1995. The relevant contractual provision is Article 25, Section 2, which provides that “an employee who is detailed to higher level work shall be paid at the higher level for time actually spent on such job.” The Postal Service does not dispute that the Grievant had been detailed to a higher level of work in the past or that he had been trained to perform some of the duties of a Level 9 Electronics Technician. The question to be determined is whether the Grievant, on September 29, 1995, performed work that was included within the job of Maintenance Mechanic or whether the work was solely within the Level 9 Electronic Technician job description.

Guidance for the settlement of this grievance comes from the Questions and Answers of the 6/27/96 Pre-arbitration Agreement between these parties at the National Level. In fact, it is incumbent on this Arbitrator to apply this National Level Pre-arbitration Settlement to this grievance. Question and Answer 2 from the Pre-arbitration Settlement, which is critical to the determination of the present grievance, reads as follows:

Q2) If the aforementioned situation occurs, but a Maintenance Mechanic, MPE, P8-7 drives to the site and corrects the problem on the CSBCS, does the MPE Mechanic, PS-7 get higher level pay?

A2) The MPE Mechanic, PS-7 would receive higher level pay for any emergency work at the site. All calls from a SMP are not of an emergency nature.

Emergency Situations
If the MPE Mechanic, PS-7 has to immediately go to the site and perform repairs to get the equipment up and running during that day’s scheduled processing window, he/she should be compensated at the Level-9.

Non-emergency Situations
Those situation that are not of the emergency nature described above, do not necessitate higher level pay. (Example: The CSBCS is down or operating at less than optimum but repairs will not be made until after the scheduled processing window. (Joint Exhibit #2)

In addition, a letter dated July 2, 1998, between the parties as part of the National Level guidance for this grievance (related to Grievance No. D94T-I D-C 97010513) states that “the parties agree that the functional purpose of the Electronic Technician, PS-9 includes operational maintenance assignments.” (Joint Exhibit #2)

The undisputed evidence in this case is persuasive that Mr. Donaldson performed operational maintenance of an emergency nature pursuant to this Pre-arbitration Settlement, and, consequently, in a higher level pay status according to Article 25, Section 2. The Grievant testimony, which is supported by another witness, is that when only one person was assigned to keep the DBCSs operational at the Cincinnati Postal Facility on the run tour, that individual was moving from machine to machine to keep the operation going. This work of operational maintenance during the scheduled processing window would fall within the core duties and level of responsibilities of an ET-9 (See USPS v. APWU, S4T-3E-C 54011 & S4T-3E-C 54006), Arbitrator Ernest E. Marlatt, April 27, 1990). The work in question was during the scheduled processing window and was emergency in nature in that it was critical to dispatching the mail in a timely fashion. Therefore, the repairs in question meet the requirements of Question and Answer Directive 2 in the Pre-arbitration Settlement related to Level 9 pay. (Joint Exhibit #2)

The Postal Service has said that it is willing to pay the Grievant at Level 9 if he could specify the exact amount of time that he spent on each task that was solely assigned to Level 9. The Postal Service argues that there must be a specific demonstration of each higher level task performed and the amount of time spent performing that work. However the undisputed testimony of the Grievant is that he was constantly responding to calls on September 29, 1995 to perform operational maintenance and other repair work within the responsibilities and duties of the Level 9 Electronic Technician. Management provided no witnesses who were actually present on Tour I on September 29, 1995 to refute the Grievant's testimony. Therefore, the Arbitrator has the uncontested testimony of the Grievant that he moved from call to call to perform operational maintenance on the DBCSs to keep the operation running throughout his shift. His testimony is supported by another ET who testified that when only one person was performing operational maintenance on the approximately twenty-one DBCSs, that person’s work time was devoted to answering trouble calls concerning repairs on these machines involving work performed exclusively by ETs. In addition, witnesses for both parties testified that the Martin-Marietta DBCSs used in 1995 were very problematic and plagued with a host of operational breakdowns.

Although the Postal Service argues that more specific documentation is needed for the Union to carry its burden of proof, the Arbitrator finds that such burden can be met by the total evidence in this record. This grievance was remanded several years after its initiation, when specific work orders and records were no longer available from the Postal Service for the date in question. The Postal Service contends that the Union should have requested any such documents about work performed when the grievance was filed and should not have waited until the case was remanded to seek such documentation. By the same token, the Postal Service was the keeper of the records and was aware of the grievance. Management, therefore, had the unique ability to preserve any records associated with outstanding grievances. It is patently unfair for ; management, as the custodian of business records, to not maintain relevant records related to a grievance and then to claim that the Union must produce such records in order to prove its case. (See Elkouri & Elkouri’s How Arbitration Works, “Preservation of Evidence,” 5th Edition, Washington, D.C.: Bureau of National Affairs, Inc., page 429)

Therefore, to meet its burden of proof, the Union can rely on the best evidence available to it, in this case, the testimony of its witnesses. The Arbitrator found the Grievant’s testimony to be credible and complete enough to carry the Union’s burden of proof by substantial evidence to support its position in this grievance. Mr. Donaldson was quite candid in testifying that he could not recall the exact DBCS machine, the exact nature of the repair, or the exact amount of time per machine that he spent in area assurance on the DBCSs on September 29, 1995. Rather, Mr. Donaldson did recall that he perform the work of operational maintenance by himself on all the DBCSs, moving from a call on one machine to a call on another machine for the entire shift in question. The Grievant further testified that he had been paid Level 9 pay for doing this same work of operational maintenance on the DBCSs on other tours of duty. Thus, the standard of Article 25, Section 2 that an employee be compensated at the higher rate for time “actually spent” on the higher level job was met in this case concerning the work performed by Mr. Donaldson on September 29,1995.

The Grievant should not be penalized because this grievance was arbitrated seven years after the fact and he cannot precisely remember the amount of time and nature of each repair. Setting such a standard of proof would make the Union’s burden insurmountable. The parties rightfully consolidated this grievance with related matters before it was remanded and eventually culminated in the present arbitration. This resulted in a considerable time lag, and the credibility and thoroughness of the testimony and documentation presented at the Arbitration Hearing must be considered accordingly.


Gary Kloepfer
National Representative at Large


 

SUBJECT:    MMO-058-02
            Fluke Corp. And Greenlee Textron Inc. Electrical Meter Recall

DATE: September 16, 2002

The purpose of this Maintenance Management Order (MMO) is to provide information on two different electrical testing products that are being recalled for unsafe operation. Information on the recalls is provided in the attachments with this MMO and on the Internet web site for the U.S. Consumer Product Safety Commission at www.cpsc.gov.

Attachment 1 pertains to certain CM-700 and CM-750 electrical meters manufactured by Greenlee Textron Inc. The serial numbers affected by this recall are 0203540001 through 0203540650. CM-700 AND CM-750 meters outside of these serial numbers are not included in this recall

Attachment 2 pertains to Fluke Digital Multimeters. The word “Fluke” and the numbers “175”, “177” or “179” are written on the front of the units. Only units having a serial number below 79000000 are affected by this recall.

USER SHOULD STOP USING THESE ELECTRICAL TEST METERS IMMEDIATELY AND FOLLOW THE PROCEDURES IN ATTACHMENT 1 AND/OR ATTACHMENT 2 FOR REPLACEMENTS.


ATTACHMENT 1
CPSC, GREENLEE TEXTRON INC. ANNOUNCE RECALL OF
ELECTRICAL TESTING METERS


WASHINGTON, D.C. - In cooperation with the U.S. Consumer Product Safety Commission (CPSC), Greenlee Textron, Inc. (Greenlee), of Rockford, III., is voluntarily recalling about 650 electrical testing meters. The meters are used to measure voltage and current of electric-powered equipment. An Incompatible grommet, located in the battery compartment to protect internal wires, can cause the meter to provide inaccurate voltage and current readings. A meter that inaccurately indicates zero voltage or current creates the potential for electric shock or an electrocution hazard from the equipment being tested.

CPSC and Greenlee have not received any reports of injuries or property damage. This recall is being conducted to prevent the possibility of injuries.

This recall involves certain CM-700 and CM-750 electrical meters. The 8-inch meters are dark green with bright yellow features. The model number and the words “Greenlee Test Instruments” are printed across the front of the meter. A silver plate on the back of the meter displays the serial number (S/N). Serial numbers included in the recall range from 0203540001 through 0203540650. The electrical meters were made in Taiwan.

Home Depot (model CM-750 only) and electrical supply stores sold the meters nationwide during April 2002. The CM-700 model sold for about $100 and the CM-750 for about $140.

Consumers should stop using the recalled meters immediately and contact Greenlee to receive a replacement meter. For more information, consumers can contact Greenlee tollfree at (800) 435-0786 between 8 a.m. to 5 p.m. CT Monday through Friday.or visit the firm’s web site at www.greenlee.textron.com

CM-700 and CM-750 meters outside the above serial number range are not included in this recall.


ATTACHMENT 2

CPSC, FLUKE CORP. ANNOUNCE RECALL OF DIGITAL MULTIMETERS

WASHINGTON, D.C. - In cooperation with the U.S. Consumer Product Safety Commission (CPSC), Fluke Corp., of Everett, Wash., is voluntarily recalling about 40,000 digital multimeters. About 17,200 were sold in the U.S. Multimeters are used to measure voltage, resistance and current. The recalled units can take longer than normal, up to 18 seconds, to display readings of AC voltages above 500 volts. Users can misinterpret the delayed reading to mean that high voltage is not present. If high voltage is present, users could be exposed to a risk of shock, electrocution, and thermal burns.

Fluke has received four reports from Canada and Australia, in which users experienced a delayed response while measuring high voltage, though no injuries were reported.

The recalled Fluke digital multimeters measure up to 1,000 volts alternating current (VAC) and direct current (VDC). “Fluke” and “175”, “177” or “179” are written on the front of the unit. The tester body is yellow and black, and measures about 7.25-inches long by 3.5-inches wide. Recalled units have a serial number below 79000000. The serial number is written on the back of the instrument under the hinged stand. Home and hardware stores and industrial distributors nationwide sold these testers from January 2001 through October 2001 for between $170 and $215.

Consumers should stop using these testers immediately and contact Fluke for information on returning the recalled unit for a free repair. Consumers should call Fluke at (800) 260-4819 between 8 a.m. and 7 p.m. ET Monday through Friday or at the Fluke Web site www.fluke.com/170recall.


Gary Kloepfer
National Representative at Large


This award is presently not in the SEARCH system.  Should you need a hard copy of this award, then please contact us

In this case the Union grieved the use of Level 7 MPE’s and Level 9 ET’s in lieu of Level 7 BEM’s, on either straight time or overtime to install airlines for mail processing equipment. 
  

Case Synopsis

Regular Arbitration Panel

Case Number:             C9OT-1C-C-95055795

Arbitrator:        Michael E. Zobrak

For the Union:        Vance Zimmerman, National Business Agent

Award Summary

The Postal Service improperly utilized MPE’s and ET’s to install an hang airlines at the Columbus, Ohio Main Post Office. This cross-occupational group assignment since the work in dispute belonged to BEM’s and had always been performed by BEM’s. The Postal Service failed to prove that BEM’s were not available to perform the work or that there was a heavy work load for the BEM’s and a light work load for the ET’s and MPE’s. The Consolidation Agreement also did not allow for the crossing of occupational groups. The grievance related to the installation of a fence is found to have been withdrawn at Step 3. BEM’s on the overtime desired list during this period are to be compensated at the applicable overtime rate for the number of hours of work performed by the MPE’s installing, hanging and finalizing the air lines, as documented by the work records, during the period of November 2, 1994 through December 12, 1994.
ISSUE

The question to be decided is if the Postal Service violated the National Agreement when it used ET’s and MPE’s to install and hang air lines as well as install a fence. If so, what shall be the remedy?

FACTUAL BACKGROUND

The parties to this dispute stipulated that on or about November 24,1994 Electronic Technicians (ET’s) and Mail Processing Equipment Mechanics (MPE’s) were used to install air lines for the Delivery Bar Code Sorters (DBCS’s) at the Columbus, Ohio Main Post Office. The Union maintains that this work should have been. assigned to the Building Equipment Mechanics (BEM’s). According. to the Union,. the MPE’s and the ET’s spent 133 hours installing the air lines between November 2,1994 and December 12, 1994.

Edgar Williams, Assistant Maintenance Craft Director, testified that ET’s and MPE’s are not permitted to install air lines or fences. He had been involved in what is identified as the “Consolidation Agreement.” According to Williams, the MPE’s job description was not changed. While the ET’s job description was changed the changes did not permit ET’s to install air lines or fences. He stated that the only time MPE’s and ET’s are permitted to work on the “building side” is when there is no BEM available or assigned to that area.

DISCUSSION AND FINDINGS


When the grievance was filed at Step 2 it protested the use of ET’s and MPE’s for the installation of air lines and for the installation of a fence in the smoking permitted area. When the grievance was advanced to Step 3, no mention was made in relation to the installation of the fence. The fact that the Union’s Step 3 appeal form contains a statement that the Step 2 grievance appeal was attached, does not offset the failure to specifically appeal the work done on the installation of the fence. In concert with the testimony of the Union’s Chief Steward, the failure to appeal that specific portion of the original grievance must lead to the conclusion that the grievance, as it relates to the installation of the fence, was withdrawn at Step 3.

Issues related to the installation of the air lines, however, remain. The undersigned has examined the work order records and the craft seniority list. Those records indicate that the installation and hanging of air lines, plus related activities, began on November 2, 1994 and continued until December 12, 1994. During that period work related to that project was conducted on 11 days. On some of the days as in any as four MPE’s were’ assigned to the project. On some-of the other days only one or two MPE’s were assigned to work on related facets of the project While the. Postal Service. argues that time was of the essence to assure completion of the project before the holiday season the assignment of relatively few employees over a scattered number of days calls into question the Postal Service’s reason for using MPE’s to complete this project.

Cunningham testified that BEM’s normally perform the installation of  air lines and that this instance was an exception to that practice. Based on Cunningham’s description of the type of work performed by each occupational group, it is further concluded that this work was properly the work of the BEM’s and not the other occupational, groups.. Nothing in the Consolidation Agreement extended this work to the other occupational groups.  He cited the need for the completion of the project before the holiday season.

In light of the examination of work records, it cannot be concluded that the project was conducted in such a manner that it was critical to cross occupational groups to perform the air line installation. The project was spaced out over more than a month and the installation and hanging of air lines required work on only three consecutive days during that more than one month period. The Postal Service has failed to establish that the use of MPE’s was critical to assure that the work could have been completed in this time period.

The Union relies on the provisions of Article 7.2 of the National Agreement to support its position.  That provision was the focus of Arbitrator Bloch’s National Award in case No. A8-W-0656. In that award Arbitrator Bloch found that the crossing of crafts can occur only under the limited circumstances cited in that provision. There must be a showing of an exceptionally heavy workload in one occupational group and, at the same time, a light workload in another work group. The Postal Service has not established that those conditions existed at the time of the installation and hanging of the air lines.

The provision of Article 7.2, according to Bloch, does not allow for assignments across occupational groups to maximize efficient personal usage.  In this case the Postal Service argues that the only way this project could have been completed in time was to use MPE’s on Tour 3.   There is no claim that there were not a sufficient number of BEM’s on the overtime desired list so as to hamper the timely completion of the project.  Despite the accepted practice at the facility of using only BEM’s to install and hang air lines, the Postal Service crossed occupational groups without any justifiable basis to complete this month long project.

Cunningham stated that ET’s, MPE’s and BEM’s were capable of performing this type of work. That well may be true, but that is not the issue in this case. The parties have established occupational’ groups, at various pay levels, for the purpose of designating work. By his own admission, the BEM’s at this facility have been recognized as the occupational group designated to install and hang air lines.  Even if, as argued by the Postal Service, this work could have been performed only on Tour 3 due to mail operation’s commitments, BEM’s are scheduled on Tours 1 and 2 and could have been called in early or held over to complete this work.


Gary Kloepfer
National Representative at Large


 

This award is presently not in the SEARCH system.  Should you need a hard copy of this award, then please contact us

In this case the Union grieved the use of Level 2 Custodians to perform lawn maintenance in lieu of Level 3 Laborer-Custodians violated the National Agreement.  The arbitrator ruled that the Postal Service violated Articles 7, 25 and 38 when it assigned level 2 custodians to perform lawn mowing work involving operating motorized lawn mowing equipment.

Case Synopsis

Case Number:    G98T-IG-C-01202094

Arbitrator:    Maretta C. Toedt

For the Union:      Michael Williams   

Issue

The parties jointly stipulated to the issue as follows:

Did the Postal Service violate the National Agreement, specifically Articles 2, 5,7, 19, 25 and 38, when it assigned level 2 custodians to do lawn mowing work involving operating motorized lawn mowing equipment which is paid at a level 4 rate? If so, what is the appropriate remedy?

Position of the Union

The Union makes the following arguments and contentions in support of its position:

This grievance involves level 2 custodians at the North Houston Processing & Distribution Center (P&DC) performing work that is considered to be level 4 work that  should have first been available to level 3 laborer custodians. In March 2001, the Postal Service asked for volunteers from the level 2 and 3 custodians on Tour II to do lawn mowing work. Lawn mowing work that involves the operation of a commercial lawn mower or driving lawn mower is level 4 work. Management assigned this work to level 2 custodians and paid them at the level 4 rate. The level 3 laborer custodians, however,  were wrongfully bypassed.

Article 38 specifies that level 2 custodians and level 3 laborer custodians are
different occupational groups and levels. Article 7.2, spells out the circumstances under
which crafts or occupational groups can be crossed or combined. Those circumstances
were not present here. There were level 3 custodians available to do the work and they
should have been utilized before the level 2 custodians to do this lawn work.

The Union requests that the grievance be sustained. The Union asks that the level 3 custodians on Tour II who volunteered and were unable to work be paid and or made whole at the overtime rate for the hours worked by the level 2 custodians until such time as this grievance is adjudicated.

Position of the Employer

The Employer makes the following arguments and contentions in support of its position:

This is a contract case and the Union bears the burden of proof. The Union has not established by a preponderance of the evidence that the Postal Service violated the National Agreement.

Union Steward Harrell approached Maintenance Manager Guillory and asked him to rotate all custodial routes among custodial personnel. To accommodate this request, Manager Guillory posted a list asking for volunteers on Tour II from custodian levels 2 and 3 to mow grass. Mowing grass with a commercial lawn mower is considered to be level 4 work however there is no level 4 position at the Houston PD&C. There is also no Promotional Eligibility List (PER) for level 4 custodians.

Based on the list of individuals who volunteered, the work was assigned and paid at the level 4 rate. The level 2 custodians that performed this work were given training in the operation of the mower. Level 2 custodians were available and qualified to perform this work. As arbitrator King noted in his 12/26/00 award at page 3, G98T-1G-C-00109790, “Essentially, it is the Union’s position that every Custodial Laborer PS-2 is capable of performing the job of a Custodial Laborer P5-3.”

Management responded to a request from the Union to rotate custodial duties. Management accommodated that request and obtained a list of volunteers. Any custodian that was assigned lawn mowing work with a motorized lawn mower did so on a purely voluntary basis and was paid the appropriate rate. There was no violation of the National Agreement.

Discussion and Opinion

The weight of the evidence indicates:

Although there is no level 4 position at the Houston P&DC and no PER list for
level 4 custodians, the task of operating a motorized lawn motor has been considered to be a task meriting level .4 pay. Prior to this grievance being filed, lawn mowing work with a commercial mower had normally been performed by level 3 laborer custodians.

The evidence showed that the duration of the lawn mowing detail was thirty (30) days. (For purposes of this Opinion & Award, level 3 custodians are referred to as laborer custodians or by their position description title of Custodial Laborers.)  Triggered by a request from Union Steward Harrell to rotate custodial routes, Manager Guillroy posted a list on March 27, 2001 and asked for volunteers on Tour 2 from level 2 custodians and level 3 laborer custodians to perform lawn mowing work. Of the 17 custodians who volunteered for this work, 6 were level 3 laborer custodians. The unrebutted evidence was that normally when rotating a schedule, level 3s rotate in a group and level 2s rotate in a group.

The Union filed a grievance alleging that on June 20, 2001 level 3 laborer custodians were bypassed when management assigned two level 2 custodians to operate gasoline powered equipment. The Union argued that these duties should be assigned to level 3 laborer custodians who are qualified to operate powered equipment.

It appears that the biggest difference between a level 2 custodian and a level 3 laborer custodian as noted in their respective position descriptions is that a level 3 laborer custodian can operate power driven equipment whereas a level 2 custodian cannot. For reasons lost to history, the operation of the motorized lawn mowing equipment had been paid at the level 4 rate of pay even though there were no level 4 custodian position at the facility and no level 4 PERS.

While there is no issue that the level 2 custodians who performed the work were paid at the appropriate level 4 rate and that they were given training to operate the equipment, there is an issue regarding whether it was proper under the National Agreement to bypass the level 3 laborer custodians. Although the Union conceded that Management could solicit volunteers and create lists to perform any task it chooses, the terms of the National Agreement must still be followed.

The National Agreement has several Articles that are relevant to this dispute. As arbitrator Sherman notes in his 1/29/89 award G98T-IG-C-01202094, the application of Articles 3, 7, 25 and 38 are far from clear. Article 3, Management Rights, gives management the exclusive right, subject to the provisions of the National Agreement, to direct employees, to maintain efficient operations and to determine the method, means and personnel by which such operations are conducted. Article 7, Employee Classifications, contains criteria that the Postal Service must use when it wishes to combine jobs within different crafts or occupational groups. For example, Section 7.2.A 1and 2 contain sequential actions that must be taken before work can be combined from different crafts, occupational groups or levels.

Article 25, Higher Level Assignment, Section 4, Higher Level Details, contains language regarding the detailing of employees to higher level bargaining unit work in each craft. When details (longer than five days out of seven calendar days, as this detail was), are made to higher level craft positions enumerated in the craft Articles of the Agreement, the senior, qualified, eligible, available employee in the immediate work area in which the temporarily vacant higher level position exists shall be selected.

Finally, Article 38, Maintenance Craft, Section 5.B.l deals with promotions and 5.B.2 deals with positions within the Maintenance Craft that will be filled on the basis of seniority (senior qualified within occupational group and level). Section 5.B.2 lists Custodian PS-2 and Custodial Laborer P5-3 as separate positions. Although it is obvious levels 2 and 3 are different levels, it is not so obvious that these are also different occupational groups. The Union says that they are, and Management says that they are not. The definition of an “occupational group” in Article 38, Section 2.H simply says that “[I]n the Maintenance Craft, occupational group shall be determined by position designation and level.” This Arbitrator does not find the definition to be very helpful.

In support of its position that level 2 and 3 custodians are different occupational groups, the Union has noted that custodians at level 2 and 3 are listed in Article 38.5.B.2 as two separate entries, that they have never been grouped together for rotations and that Management at this facility has always used level 3s to perform level 4 lawn mowing work. The Postal Service has argued that both levels are on the same OTDL. The Arbitrator also notes that the 9/13/95 Step 4 decision, I90T-1I-C-950/6544, tends to show that it is the level 3 laborer custodian position that gets paid the higher rate for doing this work.

The Maintenance Craft is a seniority driven craft. Normally, promotions and job assignments to higher level craft positions as enumerated in Article 38 in excess of five working days within seven calendar days under Article 25.4 are based on criteria involving the most senior, qualified, eligible and available employee in the immediate work area in which the temporarily vacant higher level positions exists. The employees who fit this description were the level 3 laborer custodians, not level 2 custodians. Postal Service management should not have bypassed the senior, qualified and eligible level 3 laborer custodians in favor of the level 2 custodians.

Award

The grievance is sustained. The Postal Service did violate the National Agreement, specifically Articles 7, 25 and 38, when it assigned level 2 custodians to do lawn mowing work involving operating motorized lawn mowing equipment which is paid at a level 4 rate.

The level 3 laborer custodians from Tour II who volunteered and were available to work the motorized lawn mowing equipment from June 20, 2001 to the date of this Award shall be made whole at the overtime rate for the hours worked by the level 2 custodians who performed this work.


Gary Kloepfer
National Representative at Large


 

Regular Arbitration Panel
Case Number:        C9OT-]C-C 93012117

Date of Award:        June 26, 2002

Arbitrator:        Jerry Fullmer
For the Union:        Vance Zimmerman

Award Summary

Six Maintenance Craft positions became vacant in October 1992, Employer did not post them or revert them. Union grieved alleged withholding. Held, Employer required to post or revert.  Claimed withholding not established by facts, i.e. it covered only residual vacancies such as not involved in this case. Held ~ grievance sustained. Out of schedule pay awarded.
Case Synopsis

This grievance sought application of Article 38 Section 4.A.2 and 3, reverting of vacant positions, when there is a withholding of positions.  The facts of this reveal that the Postal Service reverted several level 6 Maintenance Craft positions.  It claimed as its authority an Article 12 withholding notice due to the advent of automated mail processing equipment.  Of interest in this case was a stipulation that these positions were never posted or reverted within 40 days of the date each became vacant. The arbitrator found that under the circumstances of this case that the Postal Service violated the Agreement by reverting positions under the guise of Article for which there was no potential qualified employees, that the positions were never posted and that the positions were not residual vacancies (the only position available for an Article 12 withholding are residual vacancies.

While the arbitrator found that the Postal Service has the right to revert vacant positions, he found that management’s application of its right to violate the Agreement.

At page 6, the arbitrator describes management’s responsibility when it reverts a position.  He states: 

The reversion provision is Article 38, Section 4.3 and it is quoted above. Suffice it to say that a reversion is to be heralded by a “notice [which] shall be posted within 10 days advising of the action taken and the reasons therefore.” The facts do not indicate that any reversion took place as of the time that the grievance was filed. . This conclusion is based essentially on two reasons. First, if one had taken place there would be a “notice” which was “posted” to this effect. No such notice was in evidence. Second, according to the definition of Article 37, Section 1.G (quoted above) any such reversion would have been based on a decision by the Employer to reduce the number of the positions in the installation. The position would have been “We really don’t need a Painter, etc.” There is no evidence that the Employer ever took this position during the period preceding the grievance. 

At page7 and 8, the arbitrator makes the following observation regarding withholding a position for employees that are not currently qualified for the position being withheld:

As discussed above, “residual vacancies” does not include the vacancies involved in this case because they were never subjected to the “voluntary bidding process” and thus did not have the chance to become “residual vacancies”. On a more functional basis, there seems to be a great deal of doubt as to whether considering the withholding to apply to the vacancies involved in this case could be considered to be for the benefit of the “for full-time and pan-time flexible employees who may be involuntarily reassigned” within the language of Article 12, Section 5 B,. The reason is that the employees who might be subject to involuntary assignment from the automation of the mail handling equipment would not have been in a position to be assigned to the vacancies involved. Such employees would have to have been on the promotion eligibility registers, i.e. have passed the requisite tests. The uncontradicted testimony from witness Zimmerman indicated that there were no Clerk Craft employees on the PERs for the relevant vacancies at the time in question.

The conclusion then is that the Employer’s general February 4, 1991 general withholding did not reach the vacancies in question either literally or functionally.


Gary Kloepfer
National Representative at Large


REGIONAL ARBITRATION PANEL
        
Case Number:        J98T-1J-D-00145682

Date of Award:    June 17, 2002

Arbitrator:        Donald F. Sugerman
        
For the Union:        Donald Foley

Issue:            Indefinite Suspension and Step 1 Timeliness.  In this case the Postal Service placed an employee in an Indefinite Suspension status following receipt of an Inspector Memorandum which indicated that the grievant may have committed a crime which included theft of items from the mails.  The criminal charges were subsequently withdrawn and further investigation on the part of the responsible authorities was never pursued.  The Postal Service, in full knowledge of this information, refused to return the grievant to work.

Summary of Award:    The grievance was timely filed. Even were this not the case, USPS waived its right to protest the untimely filing by not raising the issue at Step 2 USPS had reasonable cause to suspend the Grievant on Feb. 25, 2000. It did not have just cause to continue the suspension once the complaint and warrant was dismissed on March 13, 2000. Assuming the Grievant is otherwise eligible to be reinstated, he shall be reinstated and made whole for any loss of earnings he may have sustained from March 13, 2000 to the date of such reinstatement.

Timeliness:     On the matter of Step 1 timeliness the arbitrator found that the Postal Service waived its timeliness claim by not continuing it beyond Step 1.  On pages 6 and 7 the arbitrator writes:

Even if the grievance were filed late, I would nevertheless be constrained to find that USPS waived this infirmity by failing to raise the issue at Step 2. I have carefully considered the testimony of Collins and Jenkins concerning their Step 2 meetings. Exactly when these meetings occurred cannot be determined in this record. I am unable to ascertain whether  Jenkins met with Collins “as expeditiously as possible, but no later than seven (7) days following receipt of the Step 2 appeal, unless the parties agree upon a later date” as required by the National Agreement. Clearly no agreement at this level was reached. Article 15.2 (Step 2)(f) states:

Where agreement is not reached the Employer’s decision shall be furnished to the Union representative in writing, within ten (10) days after the Step 2 meeting unless the parties agree to extend the ten (10) day period. A decision shall include a full statement of the Employer’s understanding of (1) all relevant facts (2) the contractual provisions involved, and (3) the detailed reasons for denial of the grievance.
        
There was no written answer by USPS at Step 2.
        
A failure to provide a Step 2 answer does not operate to grant a grievance. It simply permits the Union to advance the grievance to the next step should it wish to do so. But the failure to answer, leads me to conclude that an objection to timeliness was not raised by the USPS at Step 2. In this regard, Article 15.4B states:
        
The failure of the employee or the Union in Step 1, or the Union thereafter to meet the prescribed time limits of the Steps of this procedure, including arbitration, shall be considered as a waiver      of the grievance. However, if the Employer fails to raise the issue of timeliness at Step 2 or at the step at which the employee or Union failed to meet the prescribed time limits, whichever is later, such objection to the processing of the grievance is waived.
        
APWU correctly notes that the procedural issue of untimeliness is an affirmative defense. As such, USPS has the burden of proving by convincing evidence that the grievance was untimely filed, and that it preserved its objection thereto at Step 2. The evidence here does not meet the latter standard. No claim was made that the processing of the grievance by APWU at any subsequent step was untimely. Accordingly, I find that the grievance is properly before me on the merits of the controversy.


Indefinite Suspension:     Addressing the Postal Service’s decision to treat the Indefinite suspension as a permanent suspension the arbitrator reasons on pages 9 and 10.

This brings us to the fundamental question concerning the right of USPS to have continued Ripton on an indefinite suspension when the Complaint and Warrant against him had been dismissed. The US Attorney, Stephanie Davis who handled the Ripton case in Court testified that such dismissal does not exonerate the employee and may be for strategic reasons. Of course it also may be because the US Attorney believes that the evidence at the time was such that a conviction could not be obtained. Regardless of the rationale for filing the request to withdraw the complaint, on March 13, 2000, the Order dismissing the complaint and Warrant was issued by a U.S. Magistrate. It had still not been reinstated over a year later on the date of the hearing.

The only explanation given by USPS for not reinstating Ripton was that the investigation was continuing. No evidence was introduced to support this assertion.  The word “indefinite” has been defined as follows:
        
lasting for an unknown or unstated length of time: they may face indefinite detention (The New Oxford American Dictionary, Oxford University Press 2001, at p. 862.)
        
not definite, determinate, or precise. Term is more synonymous with temporary than with permanent; indefinite contemplates that condition will end at unpredictable time, whereas permanent’ does not contemplate that condition will cease to exist. Twisdale v. Womack & Martel, Fla., 148 So.2d 21, 23. (Black’s Law Dictionary, Sixth Edition, West Publishing Co., St. Paul, MN 1990.)
        
USPS appears to take the position that it may keep an employee on an indefinite suspension regardless of how long it may be and regardless of any changed circumstances. I am unable to accept this contention. Under the terms of Article 16, Section 6, it would be reasonable for USPS to continue an indefinite suspension while a criminal proceeding against an employee for theft of the mail was pending. Had the employee been found not guilty in such a proceeding, it would be improper for the Employer to continue the indefinite suspension, absent other considerations. A continuing investigation may be such a factor, but the USPS bears the burden of establishing that such continuing investigation warrants the indefinite suspension being kept in place. This was not done here. I agree with APWU that USPS treated the indefinite suspension as being permanent. It had no basis to do this.

Based upon the evidence provided by the PIS, it is unclear why USPS elected not to discharge the Grievant. In an arbitration concerning discharge, most arbitrators would find that the standard of proof was clear and convincing evidence, a standard below that needed to prove the commission of a crime. Inasmuch as the indefinite suspension was predicated entirely upon the complaint and warrant, its dismissal on March 13 required the Employer to establish further grounds for continuing Ripton’s indefinite suspension. It did not do so here.

Gary Kloepfer
National Representative at Large


REGULAR ARBITRATION PANEL

CASE NUMBER:    B9SM-1B-D-01166142

ARBITRATOR:     Joshua M. Javits, ARBITRATOR APPEARANCES


AWARD SUMMARY:    The arbitrator ruled the USPS did not have just cause to issue a Letter of Warning to the Grievant when the grievant refused t inform the attendance control supervisor of the nature of his illness.

Date of Award:    April 20, 2002

Issue:            Did Management have the right to ask Grievant about the nature of his illness at the time he notified the Service of his unscheduled leave request, and consequently, the right to discipline Grievant for his refusal to provide such information?  If not, what shall be the remedy?


Background

On April 18, 2001, Grievant Gary Boucher left work 2.5 hours early, on approved sick leave. The next morning, April 19, he called in to request eight (8) hours of sick leave. He was asked three questions: (1) Is it job-related? (2) Is it FMLA leave? (3) What is the nature of your illness? Grievant answered no to all of the questions, declining to reveal the nature of his illness. He was told that this failure could subject him to discipline or a charge of Absent Without Leave (“AWOL”).

Grievant was indeed disciplined for his refusal to reveal the nature of his illness, receiving a Letter of Warning soon after he returned to work. The Letter of Warning (dated April 25, 2001), stated, in relevant part:

This official Letter of Warning is being issued to you for the following reason(s):

Charge:    AWOL

On April 19, 2001, you called into request eight hours of unscheduled sick leave. When asked the nature of your illness, you did not indicate what the nature of your illness was. You were also notified that the leave could be charged to annual, LWOP or AWOL. Your failure to provide the information requested has resulted in a charge of AWOL for that date.

Your actions were in violation of the aforementioned Postal Regulation(s) and/or Policy(ies) [citing Section 513.332 of the ELM.

On March 30, 2001, the Service issued a memorandum to various supervisory! management personnel regarding the “Resource Management System — Automated Attendance.” Mgmt. Ex. 3. The memorandum had a Service Talk attached, to be used “as a guide” for a talk regarding attendance. The Service Talk discussed the implementation, as of April 14, 2001, of an Attendance Control Standard Operating Procedure (alternatively, the Resource Management System or Resource Management Data System (“RMD”)). A particularly pertinent part of this Service Talk was the following:

Employees calling in for sick leave should be prepared to identify the nature of the illness and expected duration of the absence. Sick leave is available due to the inability to work caused by incapacitation due to illness or injury.

As testified to by Tim Dwyer, prior to establishment of the RMD, employees were not required to provide information regarding the nature of the illness when they called in to request sick leave.

Positions of the Parties

The Union argues that the Service violated Section 513 of the ELM (and consequently, the National Agreement), by issuing Grievant a Letter of Warning for AWOL, where such Letter of Warning was based on Grievant's failure to reveal the nature of his illness when calling to request sick leave. The ELM merely requires employees to notify the Service of the fact of the illness or injury, not the nature of the illness, at the time of notification. Disciplinary action based on this failure to reveal the requested information is unsupported by the ELM and is therefore without just cause. The Union seeks an award sustaining the grievance, removing the Letter of Warning from Grievant's file, and giving to Grievant all copies of the Letter of Warning for disposition by him.

The Service argues that the request for information regarding the nature of the illness was consistent with ELM Section 513.332, and thus the failure to provide the information was a violation of Grievant's obligations under the ELM. Consequently, the AWOL determination was justified , giving the Service just cause for issuing the Letter of Warning. The Service seeks an award denying the grievance.

Decision

The crux of this grievance is the question of whether the Service had just cause for the disciplinary action taken against Grievant specifically, the Letter of Warning. In order to have just cause to discipline Grievant for failing to reveal the nature of his illness at the time he called to notify the Service of his sick leave, the Service must have had the contractual right to require a response to questions regarding the nature of Grievant's illness.

To determine the Service's right to require such a response, we must examine the Employee Labor Relations Manual (“ELM”) (which is incorporated in the National Agreement by Article 19) in effect as of the date of Grievant's discipline.

513.332 Unexpected Illness or Injury

An exception to the advance approval requirement is made for unexpected illness or injuries; however, in these situations the employee must notify appropriate postal authorities of their illness or injury and expected duration of absence as soon as possible. When sufficient information is provided to the supervisor to determine that the absence is to be covered by FMLA, the supervisor completed Form 3971 and mails it to the employee's address of record along with a Publication 71.


When the supervisor is not provided enough information in advance to determine whether or not the absence is covered by FMLA, the employee must submit a request for sick leave on Form 3971 and applicable medical or other certification upon returning to duty and explain the reason for the emergency to his or her supervisor. Employees may be required to submit acceptable evidence of incapacity to work ...

The foregoing text is the primary work rule covering employees_ notification obligations when they take sick leave. The relevant language is: “in these situations the employee must notify appropriate postal authorities of their illness or injury and expected duration of absence as soon as possible.” This language, taken in isolation, is at best ambiguous as to the Service's ability to ask employees about the nature of their illness when they call-in to notify the Supervisor. 

However, examination of other pertinent sections of the ELM, in combination with the Services_ practice prior to the Service Talk, makes it clear that under the ELM in effect as of April 2001, the Service had no right to request specific information on the nature of grievant's illness nor to discipline him for the failure to provide such information when he called in.

Where the Service intended to obtain information beyond the mere existence of an illness or injury, it explicitly stated that intent in the ELM. Section 513.364 is a perfect example of this:

513.364

Medical Documentation or Other Acceptable Evidence

When employees are required to submit medical documentation, such documentation should be furnished by the employee's attending physician or other attending practitioner who is performing within the scope of his or practice. The documentation should provide an explanation of the nature of the employee's illness or injury sufficient to indicate to management that the employee was (or will be) unable to perform his or her normal duties for the period of absence....

The foregoing section explicitly states that when documentation is called for, that documentation “should provide an explanation of the nature of the employee's illness or injury.” This language presents a marked contrast to the language of Section 513.332, which merely requires the employee to “notify appropriate postal authorities of their illness.” Had the Service intended for Section 513.332 to require employees to provide information as to the nature of their illness, it could easily have stated this requirement, as it did in Section 513.364. Not having used this clear language in Section 513.332, 1am inclined to believe that the text of Section 513.332 requires an employee to do nothing more than provide notice of the existence of an illness or injury.

That the Service did not have the right to compel Grievant's response is further highlighted by the sick leave call-in procedure introduced by the Union and the text of the Service Talk itself. The Union provided a copy of a document titled “Appendix A — Handling Employee Call-ins for Unscheduled Leave.” Union Ex. 1. After detailing questions and procedure relating to on-the-job injuries and FMLA leave, the document details the procedure regarding sick leave:

    4.0    The ACS [Attendance Control Supervisor] will ask if the employee is requesting sick leave.
    4.1    If yes, the ACS will check the employee's sick leave balance on bottom of RMD screen.
    4.2    If there are available sick leave hours, the ACS will ask if the employee is requesting 8 hours of sick leave. The ACS will check for patterns coinciding with the employee's scheduled off days or any non-random pattern. If the ACS determines excessive call-ins (add local requirements here) or patterns exist, he will ask the employee to provide appropriate documentation upon return to work.

4.2.1    If the employee requests more than 8 hours, the ACS will ask if the employee has seen a doctor. If so, the ACS will ask the employee to provide appropriate documentation upon return to work. The ACS should read the following statement to the employee and ask if they understand:
        Your documentation must state the nature of your illness or emergency. It must also state that you are incapacitated from duty for the duration of the absence. This documentation must be provided upon your return to duty. If you fail to provide acceptable documentation upon your return to duty, the absence may be charge to Absence Without Leave (AWOL).”
4.2.2    The ACS will enter the appropriate sick leave hours into
        RMD.
4.3        If there is insufficient sick leave balance, the ACS will check the employee's annual leave balance.
4.3.1    [Intentionally omitted]
4.3.2    [Intentionally omitted]
4.4        If the employee is not requesting sick leave, proceed to 6.0.

Critically, the foregoing procedure, despite setting forth detailed questions to ask an employee when he/she calls in sick, does not anywhere direct the Attendance Control Supervisor to ask for information about the nature of the employee's illness. However, as with the ELM, the procedure does direct the ACS, in certain circumstances, to ask for documentation stating “the nature of your illness or emergency.” Again, where the Service intended to have the ability to request specific information about the nature of an illness, it was capable of setting forth that ability in writing.

The text of the Service Talk itself is also revealing as to the conditions prevailing at the time of Grievant's discipline. As set forth above, the Service Talk contained the following language:

Employees calling in for sick leave should be prepared to identify the nature of the illness and expected duration of the absence. Sick leave is available due to the inability to work caused by incapacitation due to illness or injury.

This is the only documentation supporting the Service's ability to request information relating to the nature of the illness. There is no question that this “interpretation” changed, in a material way, the implementation of the ELM. Prior to the Service Talk, employees were not required to provide such information, nor were they subject to discipline if they did not provide it.

The finding of no just cause does not materially limit the Service's ability to control sick leave or obtain necessary information regarding the nature of employees_ absences. First, I would note that the Service is still able to request this information during a call in — it is merely prohibited from compelling this information under threat of discipline. Second, the Service is generally empowered to request documentation as to the nature of an illness and to discipline employees for failure to provide such documentation, as set forth in Section 513.361 of the ELM:

513.361 Three Days or Less

For periods of absence of 3 days or less, supervisors may accept the employee's statement explaining the absence. Medical documentation or other acceptable evidence of incapacity for work ... is required only when the employee is on restricted sick leave (see 513.39) or when the supervisor deems documentation desirable for the protection of the interests of the Postal Service.... Finally, the Service can, pursuant to the rules in effect for such modifications, modify the ELM to explicitly allow it to request such information.

Because I have upheld the grievance based on the absence of just cause for the discipline, I need not address the Union's “double jeopardy” argument.

The grievance is sustained. The Service is directed to remove the Letter of Warning from Grievant_s file, to remove any and all references to the Letter from his file, and to turn over to him all copies of the Letter.

Gary Kloepfer
National Representative at Large


 

REGULAR PANEL ARBITRATION AWARD SUMMARY

J94T-1J-C-97113666

Arbitrator:        Barry Simon

For the Union:        Vance Zimmerman

ISSUE:

Did the Service violate the National Agreement  when it contacted out the reconstruction  of Room 303 at the Fox Valley Processing and Distribution Facility? 1f so, what is the appropriate remedy?

BACKGROUND:

In the summer of 1995, the Postal Service contracted out work involving the conversion of a storage space at the Fox Valley Processing and Distribution Facility to a meeting and conference room, known as “Room 303.” The work involved erecting walls, installing a dropped ceiling with lighting, relocating sprinkler heads and ducts, electrical work and painting.  The work took slightly more than two months for the contractor to complete.
The Union filed the Instant grievance alleging that the Service failed to do a cost comparison prior to contracting out the work, arid that the work could have been performed by mechanics in the craft. The grievance sought payment equal to the amounts paid the contractor for labor and profit and that the Service cease and desist from this practice. At the hearing, the parties stipulated that “The Building Equipment Mechanics at Fox Valley wee qualified to perform all the work that was performed by the contractor.

REMEDY:

Based upon the evidence of record the Arbitrator finds the Service contracted out bargaining unit work without giving due consideration to the factors listed in Article 32 Section 1.A  the National  Agreement.   It has, therefore, violated the Agreement. The grievance is sustained. The bargaining unit employees who would have been assigned to perform this work are awarded. in  the aggregate,  one hour pay at the overtime rate for each hour worked by the contractor’s employees.

SUMMARY:

In sustaining the Union’s grievance the arbitrator dismissed the Postal Service’s arguments that it gave due consideration to the availability of its maintenance employees to perform the work as well as the cost of performing the work with its employees.

At pages 6 & 7 the Arbitrator  makes the following finding regarding the Postal Service’s argument regarding the unavailability of its employees: 

    Arbitrators have further held that the criteria set forth in Article 32.1. A. are exclusive, i.e.  the Service may not rely on factors other than those cited as a  basis for justifying its decision to contract out bargaining unit work. For instance, in Case I90t-1I-C-96023145, Arbitrator Fletcher wrote:

The parties have also stipulated that all 4 were fully employed during the time the work was performed by a subcontractor.  The Service sees this as justification for the subcontract.  Ful1 employment of 4 individuals that might be doing the work, though, is not justification under Article 32 for subcontracting.  Full employment goes to “availability.” While “availability” is addressed in Article 32 with respect to equipment, It is not addressed with respect to employees. The criteria with respect to employees is “qualification” Accordingly, if qualified employees are on the rolls, full employment is not justification for subcontracting.

The Service, in its presentation, suggested that the employees. while qualified to do the work, were full occupied in the performance of their regular duties, and would not be available to perform the work on Room 303. Although it attempted to couch this as an efficiency issue, which would b a valid criterion, it still relates to the availability of the employees, which. under the above cited Fletcher Award, is not a valid criterion. The Service may not take the facts and simply dress them differently to disguise the fact that it believed the employees were unavailable to perform this  work.

At pages 8 & 9 the Arbitrator  makes the following finding regarding the Postal Service cost consideration argument:   

In this case, the Arbitrator concludes that Management  Exhibit I had not been presented during the handling of the  grievance, and may not be admitted in this proceeding. in reaching this conclusion, the Arbitrator considered the fact that the Service’s Step Two denial makes no specific mention of this particular document, nor does it refer to the estimated cost figure, Certainly, if the Service had comparative figures. it would have been to its advantage to cite them in its denial. At Step three. the Service again wrote that “the evidence indicates a cost comparison was completed. Again, there was no citation of what the cost differences might have been and the record does not show the document to have been presented to the Union at this stage of the grievance handling.

The Arbitrator is also persuaded by the fact that the Union filed a grievance over the Service’s failure to comply with its information request. That grievance was settled at Step Three  with the agreement that Management would provide all the information and documents relied upon prior to the decision to contract out the work. It appears the only document provided under this  settlement was a detailed cost breakdown showing labor and material costs as separate items.  This document, according to Holm, was prepared was prepared by him in order to satisfy the grievance over the information request.  Upon cross-examination, he testified it was prepared one year after the work was done. Thus, it would not have been a basis for the decision to contract out the work. 

-
Gary Kloepfer
National Representative at Large


 

REGULAR REGIONAL ARBITRATION AWARD

CASE NUMBER:    C9OT-4C-C95026583

FOR THE UNION:    DOUG MIROWSKI

ARBITRATOR:    PHILIP W. PARKINSON

ISSUE:    The issue in this case was limited to arbitrability.  At the beginning of the arbitration hearing the Postal Service declared that the case was not arbitrable based on its claim that the Steward that filed the Step 1 grievance was not the certified Steward and that he did not file the grievance with the  employee’s immediate supervisor.  Based on the facts of this case, the arbitrator dismissed the Postal Service’s claim and ruled the grievance was arbitrable.

THE GRIEVANCE

The grievance was filed on December 30, 1994 by Mr. Brian Dranzik, a Steward at the Kittanning, Pennsylvania Postal Facility of the United States Postal Service.   The grievance was filed at the Ford City, Pennsylvania Post Office of the Postal Service and, on the Step I Meeting and Decision Form, states that the “Grievant, Person or Union” is the “APWU”. The latter designation refers to the American Postal Workers Union and the grievance, as filed by Steward Dranzik, emanated from the APWU Kittanning Local 956. The grievance form indicates that a Step 1 meeting was held on December 30, 1994 and the Management representative was Ms. Rosemary Warcholak, the Postmaster at the Ford City, Pennsylvania Postal Facility. The grievance alleges a violation of the parties_ collective bargaining agreement and contests the work done by who the Union claims to be a “non-existing employee” pursuant to the Postal Service requirements. They allege that Mr. R. Smith, a PTR custodian, was relieved of his duties in Ford City and the same duties were performed by a “non-existing employee”. The grievance also indicates that Management did not render any decision at Step 1, nor submitted the documentation that was requested, and therefore, the Union automatically moved it to Step 2. The record further indicates that there was no Step 2 meeting and/or detennination, and accordingly, on January 20, 1995 the Union appealed it to Step 3 of the grievance procedure. This appeal was made bccause no meeting was scheduled within the required seven days upon receipt of the Step 2 appeal dated January 11, 1995, nor was a written decision submitted within ten days after the Step 2 meeting. The Union therefore moved the grievance to the next step, i.e., Step 3 of the grievance procedure. Thereafter, on June 6, 1995, subsequent to a discussion “on several occasions” at Step 3. the Postal Service denied the appeal stating that, “the file does not support the existence of any contractual violation in the above captioned matter. Lacking a violation, the grievance is hereby denied.” The grievance was then appealed to arbitration on June 13, 1995 and the undersigned was appointed to hear and decide the matter. Accordingly, a hearing was held on February 22, 2002.

At the outset of this hearing the Postal Service argued that the grievance is not arbitrable and also stated that it was prepared to present its case and go forward solely on the issue of arbitrability of this matter. The Union objected to this position and, subsequent to considerable discussion, the arbitrator ruled that consistent with his policy, if either party is not prepared to move forward on the merits and wishes to bifurcate the hearing, that the arbitrator would not hear the merits as an ex parte type proceeding.

SUMMARY OF ARBITRATOR’S OPINION

At page 10 the arbitrator addresses the issue of the issues of procedural arbitrability and that a party can waive its right to claim this type of arbitrability issue by remaining silent throughout the lower steps of the grievance procedure.  The arbitrator states:


With this in perspective, the parties are aware that the issue of arbitrability can be raised initially at the arbitration proceeding. This was confirmed in a national decision2 by Arbitrator Richard Mittenthal when he stated in his decision (H7T-3W-C-12454), inter alia,  “the Postal Service is free to raise this arbitrability defensive at the arbitration hearing even though it had not raised the matter earlier. For this kind of defense goes to the very power of the arbitrator to act and cannot be waived through prior silence.” However, Arbitrator Mittenthal also indicated in his award that, “procedural arbitrability (i.e., a timeliness claim), on the other hand, can be waived through silence.” Thus, where a case involves a procedural defect and/or a procedural defense, then it would appear that National Arbitrator Mittenthal_s position is that such a defense should be raised earlier than at the arbitration proceeding. To this extent, Arbitrator J.D. Goldstein, in a decision at the Bradford, Pennsylvania Postal facility c90c-4c-d-95069756)  stated that, Arbitrator Mittenthal in his decision was discussing substantive arbitrability and that there was a distinction made with regard to the procedural arbitrability, which, as he indicated in a footnote of his Award, can be waived through silence.

The arbitrator then found the grievance arbitrable based on the facts of the case and application of Article 17 and National Arbitrator Mittenthal above referenced award.  On pages 11 and 12 the arbitrator stated:

At no time during this referral and/or at Step 1 was Mr. Dranzik informed that he was not the proper person to present the grievance involving Mr. Smith. Therefore, it appears that the Postal Service waived their procedural defense of lack of jurisdiction on the part of Mr. Dranzik by purporting to tell him how to proceed and with whom to proceed. Thus, Mr. Dranzik was led to believe that he was properly representing Mr. Smith. No indication of his lack of jurisdiction was ever forthcoming by the Postal Service. Even at Step 3 where there appears to have been a discussion there was nothing set forth with respect to his lack of jurisdiction. As a matter of fact, at Step 3 it indicates that this grievance was discussed “on several occasions” yet in the written response at this Step it simply states that the file doesn’t support the existence of any contractual violation and therefore lacking such a violation the grievance is denied. Consequently, this procedural defense of non-arbitrability that was raised initially at the arbitration hearing was, in effect, waived by the Postal Service, not only by its action in directing Steward Dranzik to do what he did with regard to the grievance and with whom he did it, but also because there was complete silence during the Steps of the grievance procedure of this defense that the Postal Management now raises initially at arbitration. Thus, it is my determination that the procedural defense of Steward Dranzik_s right to file a grievance for Mr. Smith, an employee of Kittanning who also worked part-time at Ford City, was, in effect, not only waived but the type of defense that should have been asserted prior to the arbitration proceeding. Therefore, it is my decision that the grievance is, in fact, arbitrable.

Gary Kloepfer
National Representative at Large


REGULAR REGIONAL ARBITRATION AWARD


Case No.         D94T-1D-C 98047954
For the Union:        Edgar Williams
Arbitrator:        Patrick Hardin

Issue:            Did the Postal Service violate the National Agreement or the incorporated EL-201 & -303 Handbook by assigning calibration work on the Wide Area Bar Code Readers to level 7 Maintenance Mechanics (MPE-7 employees) rather than to level 9 Electronic Technicians (ET-9 employees)?

Facts

The Union filed this grievance on January 7, 1998, alleging that Management was improperly assigning certain maintenance tasks on the Wide Area Bar Code Reader (WABCR) to MPE-07 employees rather than to ET-09 employees. At Step two, Management acknowledged that it was so assigning the work, but denied that the assignment was improper.

Analysis and Conclusions of the Arbitrator

This would be a somewhat more difficult case were it not for the award by Arbitrator Miles. That award, issued March 4, 1999, ruled that Management of the Charlotte Post Office violated the Agreement and incorporated handbooks by assigning to MPE-7s, rather than to ET-9, the work of inspecting and calibrating the IJP once per tour. It is apparent from a comparison of that award to the record in this matter that the work of calibrating the IJP once per tour and the work of calibrating the WABCR once per tour are so similar that they must be treated as identical. It follows that the Miles award must be given controlling weight in this matter. To do otherwise would deprive that award of its final and binding effect and thereby violate Article 15.5.A.6: “All decisions of an arbitrator will be final and binding.”

Award

The parties stipulated that upon the sustaining of the grievance the arbitrator should provide the remedy below:

Management of the Charlotte, North Carolina, Processing and Distribution Center shall cease and desist from assigning MPE-7 employees to adjust and calibrate the Wide Area Bar Code Readers. That work, like the work of adjusting and calibrating the Ink Jet Printers resolved in the award in case no. D94T-1D-C 98022989, issued March 4, 1999, must be assigned to ET-9 employees.

Gary Kloepfer
National Representative at Large


Case Number:        J94T-1J-C 97000014
Arbitrator:    Linda Dileone Klein
For the Union:    Donald Foley

Issue:    Enforced Leave  – Unfit for Duty

On July 24, 1996, the grievant was issued the following Notice of Placement on Enforced Leave for “Inability to Safety and Efficiently Perform Your Duties”.  He was placed in a LWOP status and was to remain in that status until he furnished medical documentation demonstrating to the satisfaction of management that he was able to perform the duties of his position (Laborer-Custodian).
The grievant has a history of cerebral palsy and diabetes. In addition, he has hearing and visual impairments. He was hired by the Postal Service through a vocational rehabilitation program as a Custodial Laborer, Level 3. He worked as a custodian in the Maintenance Department for approximately seven years. There was  nothing in the record to show that the grievant’ s work performance was inadequate during this time frame.

AWARD

A careful examination of the evidence presented in this case demonstrates that the Postal Service failed to act in good faith when it placed the grievant on enforced leave and when it failed to return him to duty after subsequent medical evidence was submitted to show that Dr. Ahmed and Dr. Silvers found that he could work at a desk job using a quad walker. Dr. Silvers was even more specific than Dr. Ahmed for the reason that Dr. Silvers had examined the grievant in 1992 and 1995 and he was aware of the grievant’s casing assignment. Nevertheless, Dr. Cason concluded that the grievant posed a significant risk and should be sent for disability retirement counseling.

The grievant’s original Form 50 cited his “severe” handicap. Management hired him as a Custodial Laborer, Level 3 and accommodated his restrictions and limitations. This situation continued, apparently without incident, until 1992 when the grievant was sent for a fitness for duty exam.  In 1992, Dr. Silvers referred to the grievant’s “permanent” neurologic disorders and the limitations on his “coordinated movement”. Dr. Silvers also expressed his opinion that the grievant could not reasonably be expected to resume his prior occupational duties, but was more appropriately suited for clerical tasks. Shortly thereafter, Advent Enterprises became involved and these professional vocational rehabilitation consultants also concluded that the grievant was best suited for clerical/casing duties with accommodations to his work area, such as an anti—skid mat at the work site, a chair and a case which was “affixed to the floor”. Advent was called in a second time after the grievant fell, however, the only change in their recommendation was that the grievant should be placed in a situation where he could easily reach the mail or where mail could be provided to him. Despite the permanency of his problem, the grievant continued to work.

Questions then arose as to the grievant’s work hours and his rate of pay. Clearly, Management has the right to determine an employee’s work hours and the Union has the right to file a grievance to pursue what it believes to be the appropriate pay level. It is apparent that the pursuit of Level 5 wages was an issue with Management. For example, on May 12, 1993, the Step 2 designee stated that the grievant could continue working at the letter case if he accepted Level 3 pay; if not, Management “will not be able to provide work for the Level 3 custodial employee”; no manager indicated that casing work was no longer “available”. When the Step 3 decision was rendered, it reflected an agreement to pay the grievant Level 5 wages for distributing mail. It should be noted that the decision also uses the terminology “core duties of a distribution clerk”, however, this phrase is further defined as “distributing mail”.

Shortly thereafter, the grievant was offered, and he accepted, a permanent light duty job as a Level 3 Post Office Clerk; there was no evidence presented at arbitration to show that the aforementioned Step 3 agreement was ever implemented. In fact, the evidence suggests that upon learning of said Step 3 agreement, Management claimed that there was no work available for the grievant in the clerk craft. This revelation came only three days after the grievant agreed to work the hours designated by Management at the rate of pay designated by Management. The conclusion to be drawn from Management’s action is inescapable and avoidable.

Then, despite the overwhelming evidence regarding the grievant’s need and suitability for casing work in an area which had been modified for his restrictions, the grievant was placed back under the supervision of the Maintenance Department. He was given a variety of duties, some of which necessitated his walking
around the facility. Then, Management became concerned because of the awkwardness of his movement and the fact that he was prone to falling. Instead of returning him to the job which had been deemed suitable for the grievant, Management retained him in a position where the risks were increased.

In February 1995, the grievant was again examined by Dr. Silvers. The doctor found “no substantial change in neurologic consultation relative to his prior assessment on 10/10/92”. He referenced “gait instability” and “further falls”. He stated that “this problem cannot be effectively modified or prevented and remains unpredictable”. Dr. Silvers concluded that the grievant could “function in the capacity of Post Office Clerk Level P53”. Although Dr. Lee, a postal medical official, had earlier believed that a clerical job would be “inappropriate” for the grievant, he changed his position after reviewing Dr. Silvers’ report. As shown in his letter of March 24, 1995, he concluded that the grievant could work in a stationery position; he added that “as long as he does not have to walk to perform his duties he can work”. Nevertheless, the grievant was not returned to clerical work.

The evidence establishes that prior to being taken off the casing work, the grievant’s performance had been acceptable and there was nothing wrong with the set up of the job as recommended by Advent. The grievant was simply not permitted to continue in the job specifically designed to meet his needs. Instead, the Postal Service increased the risk to his well-being by the assignment in the Maintenance Department; the Postal Service in effect created a situation where the grievant was destined to fail; although he was supposed to have a desk job, he was asked to perform duties which required a degree of mobility. This contradicts their claim that they were trying to help him. The Arbitrator does not doubt that the grievant fell at work on various occasions in May 1996, however, the falls were related to the assignment which was in conflict with the medical findings and the recommendations of Advent.

The Notice of Enforced Leave was then issued without benefit of a fitness for duty exam prior thereto, and the grievant was advised that he would remain in that status until he was “able to furnish medical documentation demonstrating to the satisfaction of Management that you are able to perform the duties of your position”. Clearly, the grievant could not provide evidence that he was capable of working as a custodial laborer. However, the report of Drs. Horowitz and Ahmed showed that he “seems to be able to work” using a quad walker; it further showed that he was better off in a desk job; the report was dated August 13, 1996. On August 12 and 16, 1996, Dr. Silvers, the physician who was most knowledgeable about the grievant’s condition, also advised Management that the grievant could return to his previous occupational duties”; in Dr. Silvers’ experience, those duties were clerical not janitorial. Dr. Cason rejected this proof which was provided in response to the Notice of Enforced Leave and recommended disability retirement counseling. The rejection of this proof further shows how the Postal Service treated the grievant. The rejection of this proof cannot be justified in any way. The Arbitrator concludes that the Postal Service made a concerted effort to keep the grievant away from the casing work which had specifically been designed to accommodate his disability. They essentially forced him to apply for disability retirement.

This aspect of the case, the requesting and granting of disability retirement by OPM, complicates the formulation of any remedy here. Also impacting the remedy are the two conflicting statements from the grievant’s doctor of choice.  Nevertheless, a careful review of the grievant’s doctor’s testimony reveals that the letter which accompanied the disability retirement application was written based upon the grievant’s duties in maintenance, not his ability to case mail. A similar examination of the grievant’s application for disability retirement shows his acknowledgment that he cannot perform custodial work anymore. Although he also referenced the clerical work he had been doing, he added that “you’ll have to get information from the Postal Service”. It is apparent to this Arbitrator that the grievant’s application for disability retirement was not strictly voluntary. The question which arises is whether the Arbitrator has the authority to grant a remedy which extends beyond the approval! granting of the grievant’s request for disability retirement.  Under ordinary circumstances, the Arbitrator would find that any such authority ends when OPM approves the application. However, under the facts of this case, it is evident that the actions of the Postal Service were questionable, at the very least, in August 1996 when it declined to accept the medical statements of Dr. Silvers and Dr. Ahmed stating that the grievant could return to work under certain conditions. Accordingly, the Arbitrator finds that the following Award is appropriate and warranted.


AWARD

The grievant’s last day in a pay status was September 13, 1996. Beginning on September 14, 1996, he is entitled to compensation based upon the elements of the permanent light duty job offer which he signed on December 6, 1994; he was assigned to work five days per week from 7:45 A.M. to 4:15 P.M. distributing letter mail at the Level 3 rate of pay. The Arbitrator cannot enforce the prior grievance settlement (Joint Exhibit 20) through this award; this is a separate process. This award includes any benefit entitlement as of September 14, 1996, less any earnings and benefits received since that date.


Gary Kloepfer
National Representative at Large


Case No.     J94T-1J~C 97032632

Arbitrator:    John C. Fletcher

For the Union: Vance Zimmerman

ISSUE:        Custodial Staffing and Non-Performance of Cleaning Services
Union Framed the Issue as:     “Did the Postal Service violate the National Agreement and its Handbooks and Manuals by not maintaining the Maintenance Staffing Compliment and by not performing all Maintenance work?”

 Arbitrator Framed the Issue:    “Did the Postal Service violate the National Agreement when they failed to properly assign the correct amount of custodial staff to perform cleaning of the workroom floor on T-2 at the Carol Stream
Summary

The resolution of this grievance, therefore, lies in establishing what would be the correct custodial staffing level of the Carol Stream facility. And, a determination if the custodians on Tour 2, were indeed assigned routes that exceeded the maximum allowable by the MS-47.  Accordingly, we will order that  immediately Management and the Union jointly compute the custodial. staffing necessary for the workroom floor of the Carol Stream facility, using the appropriate methodology and procedures contained in Handbook MS-47 (the version that was in place on the date the grievance was filed). When this staffing level is determined, that is the staffing level that was required (by Step 4 decisions and arbitral authority) to be in place at the time this grievance was filed. And, subsequent to fourteen days prior to August 15, 1996 (the date this grievance was handled at Step 1) in any pay period that the custodial hours worked cleaning the work room floor did not equal the custodial hours indicated as necessary to clean the work room floor, custodians on the rolls shall be made whole to the extent of the deficient hours, but only at straight-time rates. Furthermore, Management is directed to Staff the facility at the levels provided in the Staffing Package, as it may be revised by this Award.

Facts

The March 1995, “approved”~ Workload Analysis and Summary —PS Form 4852 (“the Staffing Package”) for the Carol Stream, Illinois Processing and Distribution Center indicates (Line L) that 63 employees are needed to clean the facility in accordance with the “standard&_ contained in Handbook MS47 Housekeeping — Postal Facilities .  Contending that Management “did not fill the Staffing Package,” APWU's Maintenance Craft Steward, on August 15, 1996. discussed a Step 1 grievance with the Service’s Building Operations Supervisor. APWU’s Step I Grievance Worksheet  indicated under background, that there should be 8.5 cleaners, but since the “1992 move-in day only 4 cleaners were utilized.”

According to the Worksheet, the corrective action sought at Step 1 was that 12,480 hours overtime be paid to affected employees3 that the ODL be “maxed out,” and that five new bid jobs be posted.  The grievance was denied at Step 1 with the notation “can not remedy situation” handwritten at the bottom of the Worksheet by the Service's designee. On September 4, 1996, appeal was taken to Step 2. In the Standard Grievance Appeal Form APWU's Steward noted under item 12, “As per MS-47 cleaning of workroom floor should be 45,000 sq. Ft. Route 8220 is around 90,000. Please see attached copy.” The corrective action requested in the Step 2 appeal was essentially the same as that requested at Step 1. On December 10, 1996, the Service's Manager Maintenance Operations issued the Step 2 denial. In that denial. the background of the grievance was noted to be, “the cleaning routes on the workroom floor are too large, and has been that way since May, 1992.” The singular stated reason for denial of the grievance was that; “the grievance is untimely.”



It is also the contention of the Union that management is in violation of Handbook MS-47 with respect to the fact that management should have staffed and scheduled 8.5 employees to clean the workroom floor per day. Since this has not happened the appropriate remedy must be that management compensate all affected employees at their appropriate overtime rate for all of the work which could not be accomplished due to improper scheduling of work, management assigned all appropriate overtime hours necessary to perform the work indicated in the staffing and scheduling survey and management hire the correct complement of custodians per the approved staffing package. This is required of management under the Handbook MS-47 Sections 116 and 243.u, and also numerous arbitration awards. Management must staff and schedule work in accordance with guidelines set forth in the Handbook MS-47.


Synopsis of Arbitrator’s Award:

Timeliness:    The grievance was timely filed. 

Even though this grievance is confined to the custodial cleaning routes on Tour 2, it is nonetheless based on a complaint of custodial understaffing. And, there should be no question that an alleged failure on the part of Management to provide custodial staffing in accordance with a Staffing Package developed under the procedures and processes outlined in Handbook MS-47 satisfy the characteristics of a continuing violation — the alleged understaffing occurred on a daily basis._ As such a grievance may be filed at any time, however the remedy cannot go back more than fourteen days prior to the date the grievance was filed. (Thus, the corrective action requested at Steps 1 and 2, in the instant case, seeking 12,480 hours of overtime, would be inappropriate by any measure, as it most certainly would cover instances of alleged contract breach well beyond fourteen days prior to the date the grievance was filed.)

Merits:

It is well settled that once a properly developed and approved staffing package is in place, the Postal Service must staff the facility in accordance with that package. When it does not do so, .the Service's contractual commitment to the Maintenance Craft is not being fulfilled and a monetary remedy is necessary. In this regard see, for example Arbitrator Benn in I90T-1I-C 93036556.  See also the Step 4 decision in H7T.-3A-C 8445 and Step 4 decision in B9OT-4B-C 93015581. Accordingly. if the Carol Stream facility was understaffed, then Managements agreement with the Maintenance Craft was not being honored, and the grievance filed in ibis matter has merit.  The resolution of this grievance, therefore, lies in establishing what would be the correct custodial staffing level of the Carol Stream facility. And, a determination if the custodians on Tour 2, were indeed assigned routes that exceeded the maximum allowable by the MS-47.  Accordingly, we will order that  immediately Management and the Union jointly compute the custodial. staffing necessary for the workroom floor of the Carol Stream facility, using the appropriate methodology and procedures contained in Handbook MS-47 (the version that was in place on the date the grievance was filed). When this staffing level is determined, that is the staffing level that was required (by Step 4 decisions and arbitral authority) to be in place at the time this grievance was filed. And, subsequent to fourteen days prior to August 15, 1996 (the date this grievance was handled at Step 1) in any pay period that the custodial hours worked cleaning the work room floor did not equal the custodial hours indicated as necessary to clean the work room floor, custodians on the rolls shall be made whole to the extent of the deficient hours, but only at straight-time rates. Furthermore, Management is directed to Staff the facility at the levels provided in the Staffing Package, as it may be revised by this Award.

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Gary Kloepfer
National Representative at Large


Case No:     H98T-1H-C02005488

Arbitrator:    Robert B. Hoffman

For the Union:     Charlie Robbins

ISSUE:    Reversion Process

Summary

Management failed to list on the August 28, 2001 notice of intent its determination that one of the ET assignments was to be reverted if it became vacant during the bidding process initiated by this notice. Management knew prior to the posting of this notice that one such position was to be reverted in order to meet operational needs.


Facts:

A Preferred Duty Assignment was posted August 28, 2001 without any notice that other ET Preferred Duty Assignments, if they became vacant during the bidding process, would be reverted.  On September 10, 2002 the Maintenance Manager stopped the “fill” process and posted a notice stating that a Preferred Duty Assignment was “being reverted due to the needs of the Service . . . “in accordance with Article 38.4A3 of the National Agreement. The reverted position would be re-posted as tour 3, Monday-Tuesday off. It was re-posted on the same day. With a new job posting, employees complete a new preferred assignment form.

Synopsis of Arbitrator’s Award::

Certainly management has the contractual right to revert a vacant bid. That is not the issue here. The concern is notification or listing of those assignments that will be reverted. The issue is when a determination must be made and communicated to the bidders. Both parties agree that the Q & A is relevant in deciding this grievance. The Union claims it was not followed and management argues that it did do so.

Crucial to this grievance is the portion of the answer to question 4 that management determine “if there are duty assignments that will be reverted or changed if they are vacated during the bidding process.” The reference to “assignments” suggests that it is the chain of assignment vacancies created by the initial notice of intent for which a reversion or change determination must be made. Inasmuch as the reversion is “during the bidding process,” the notice of intent triggers the “residual bids,” as contemplated by Article 38.5.B.5 (“a notice of intent will be posted to fill the vacancy and all residual vacancies....“). It is this process that creates vacancies that can be vacated.  The Q & A tells management that “it must determine if_ the duty assignments are to be reverted during this process. This is a mandatory statement. Management must make this determination about the reversions for the assignments, and it must do so “prior to posting the notice of intent.”

Thus, with the Tour 1 vacancy created by a retirement being posted on August 28, Holland knew that if the Murray position became vacant “during the bidding process,” which it did after the grievant received the August 28 bid, he would revert it so he could make the required

Management's interpretation of the Q & A would stop the bidding process in midstream; it could thereby adversely impact prior bidders who relied on positions not being vacated. Making a determination in advance, knowing that ET positions will be vacant as a result of a notice of intent, eliminates this concern and makes the process fair. Even if the position were not vacated and management had listed it, there is no harm to the process. But by failing to do so, when a determination had already been made prior to August 28, means that those who make preferences and enter the process do so at their peril. This does not appear to be the intent of Article 38 or the parties_ Q and A.

Award:

Based on the above and the entire record, the grievance is sustained. The grievant shall be made whole by receiving out of schedule pay for the two days that were changed as days off for the period from September 10, 2001 until his retirement on January 2, 2002.

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Gary Kloepfer
National Representative at Large


 

The Postal Service issued a Memorandum regarding Daily Handling of Treated Dust Mops on April 30, 2002.


Daily Handling of Treated Dust Mops

April 30, 2002


MANAGERS, MAINTENANCE SUPPORT
AREA OFFICES
MANAGER, MAINTENANCE
CAP1TAL METRO OPERATIONS

SUBJECT:    Daily Handling of Treated Dust Mops


The handling of treated dust mops as addressed in the Interim Custodial Cleaning Procedures, updated November 20, 2001; calls for mop heads to be replaced as often as needed. These soiled mop heads are to be rinsed in a 10 percent household chlorine bleach solution after removal and before being returned to the textile rental agent for cleaning. However, the procedure does not address handling of treated mop heads on a day-to-day basis prior to their removal and return. Prior to being placed in storage, treated dust mops should be vacuumed using a HEPA rated vacuum to remove loose debris, dirt and dust. It is important to note that the requirement remains that floor mops must not be tapped or shaken to remove dust. Only a HEPA rated vacuum may be used for this purpose.

As an alternative to using treated dust mops, please reference the MTSC Clean web site. It provides information on a disposable treated fabric system available through the W.W. Grainger custodial products contract, and may be ordered using eBuy. Specific catalog and parts numbers, plus a comparative analysis of advantages and disadvantages is provided on the web site.

This memorandum delineates the policy on handling treated dust mops at facilities that have not tested positive for anthrax spores. Cleaning requirements in those facilities must follow the cleaning regimens outlined specifically for the facility.

All cleaning procedures documentation and appropriate MMOs will be revised accordingly as soon a possible. In the interim, please make sure this information is distributed as appropriate, and all custodial staff are so instructed.

--
Gary Kloepfer
National Representative at Large


As you know the Postal Service has banned the use of compressed air for cleaning.  We recently received a report that the following language was being printed on the bottom of the Employee Assignment Work Sheets, which are generated from the VMARS program, "Where air pressure is required for cleaning use a low air pressure (30 psi or less) air source. Eye protection (goggles or face shield) must be used when utilizing compressed air for cleaning."  

We requested that the Postal Service remove this language from its VMARS software and insert the language requiring the use of HEPA vacuum for cleaning.  We were told by Carl Sumner of Maintenance Plans and Policies that local management has the ability to make this correction at the local level.  Based on this claim we ask that you examine the Employee Assignment Work Sheets as well as other Maintenance documents to ensure that all references to the use of compressed air for cleaning is removed.  Should your local management claim that it cannot make the necessary corrections, then I ask that you provide with that manager's name so that this safety issue can be corrected.  Thanking you in advance for your cooperation in this matter.


Recently we approached the Postal Service in an effort to discuss the many complaints we have been receiving regarding the extra time it takes to clean with a vacuum as opposed to compressed air.  Since the amount of extra time would vary from office to office, we believed that we could achieve an agreement that would incorporate the current procedures from the MS-63 Handbook.  Specifically we believed the application of sections 516.6, 518 and 519 (listed below) would adequately address this issue at each Facility.  Surprisingly the Postal Service would not consider resolving this issue, instead it claimed that it would only deal with individual local problems involving additional cleaning time.  In order to satisfy the Postal Service's national leaders desire to only discuss individual local problems, we are reluctantly requesting that Locals file grievances when local management refuses to permit extra time for cleaning or refuses to expand the cleaning time allotment on the Preventive Maintenance route.  It is unfortunate that the Postal Service at this level has taken this position, however it left us with no other option.  

Locals must document the extra time being used for cleaning by applying the regulations found in the MS-63 handbook. Your cooperation in this matter will be greatly appreciated.

516.6 Review of Preventive Maintenance (PM) Checklists

516.61 Adjustments

After a complete program is established, PM checklists should be reviewed periodically. Maintenance should be scheduled less frequently for check points that historically have never produced deficiencies. When deficiencies occur often, PM should be performed more frequently. Review of equipment records and experience can indicate the need to increase or decrease the frequencies and checkpoints based on historical data.

516.62 Evaluations

The frequency of PM operations should be such that emergencies and breakdown repairs are minimized. Maintenance is responsible for analyzing building equipment failures and service repairs information to determine the need for adjusting checklists. Maintenance personnel assigned to perform PM routes can be of assistance in making these evaluations. Exhibit 581 is Form 4774 (see 582 for explanation of Form 4774).

516.63 Variation of Time from Master Checklist

Local checklists that are developed from master checklists and vary by more than 15 percent from the time allowed on the master checklist must be reviewed by the senior maintenance official and approved by the site manager.

POLICY—When the time allocated on a local checklist exceeds the time allocated on the master checklist by more than 15 percent, the policy of the maintenance organization is to forward a written request for variance to United States Postal Service (USPS) Engineering for consideration and coordination with the Maintenance Technical Support Center (MTSC).

Maintenance must maintain files of the approval and supporting justification.

518 Adjustments and Minor Repairs

Adjustments and minor repairs or replacements are made by the employee performing the route if the tools and material are on hand and if the work can be completed within 18 minutes for each piece of equipment on the route. When more time, tools, parts, or staffing appear to be required, the discrepancy must be reported to the senior maintenance official or designee with a notation on the route or PM Work Order Card. A Maintenance Work Order Request must be prepared describing the nature of the defect, the required work, the material needed, and an estimate of the work hours. Personnel initiating the work order should make their descriptions as complete as possible.

519 Completing Route Sheet/PM Work Record Card

On completion of a scheduled route, the employee must complete the PM Work Order Card. If all items of a scheduled inspection route are not completed, the employee should enter status code W or P, as appropriate, on the PM Work Order Card and use either the Minor Maintenance Performed column or the PM Work Record Card to note the items completed. Information regarding every work assignment must be submitted to the senior maintenance official or designee. PM Work Order Cards are collected and reviewed for completeness. Supervisors must be informed of deficiencies. If required, a work request must be initiated.

Gary Kloepfer
National Representative at Large

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