Arbitrator: USPS In Mississippi Must Stop Practice Of Using Custodians To Transport Mail
This is a summary of Regular Panel Arbitrator Leroy R. Bartman in case H06T-4H-C 09241417 regarding the Postal Service’s decision to transport mail between two postal facilities. The arbitrator sustained the Union’s grievance; he directed the Postal Service to cease and desist from continuing its practice of utilizing the two assigned custodians from transporting mail to other Gulf Coastal facilities. He remanded back to the parties the “make whole” aspects of the remedy so that the parties could determine Clerk Craft and/or other eligible qualified employee(s) who were denied the hours worked by the two custodians for the period of fourteen (14) days prior to the grievance filing until the award is implemented.
The Union contended the Postal Service violated the National Agreement when it used lower level employees to perform assignments and duties inconsistent with their respective job descriptions. It was the Union’s position that the Service violated the boundaries of occupational groups and crafts established by the clear and precise requirements of the standard job descriptions. To be specific, the Union argued that at the Moss Point MS Post Office Management has two custodians scheduled on a regular daily basis two (2) hours each day to transport missent mail to other postal facilities. Management has paid the two employees the higher level Clerk PS-6 wages to transport the mail. The Union argues that the MS-47 custodial staffing for the Moss Point office requires in excess of two custodians. By requiring the two employees to spend two (2) hours each and every day, the Service clearly is in violation of MS-47 standard of 2.09 custodians approved for the Moss Point facility. The Union requested that the Postal Service be required to meet the Maintenance Series Handbook (MS-47), Housekeeping Postal Facilities staffing at Moss Point. The Union asked that the Service cease and desist in assigning the two maintenance employees the daily duty of transporting mail and that the “make whole” language of the JCIM be applied at the appropriate overtime rate to the available and qualified clerks who would have been scheduled to transport the mail that was wrongly delivered by the custodians. It is further requested that the two custodians be awarded, at the overtime rate, two hours pay for custodial work not being performed.
The arbitrator properly sustained the Union’s grievance; in so doing he stated:
The Arbitrator has read all of the numerous case citations submitted by the parties. The overwhelming consensus of the awards are that the Postal Service “cannot” (emphasis added), without following the required steps of analysis as outlined in the MS-47, unilaterally alter the number of custodial staff assigned to the postal facility. In this case, Management essentially and factually reduced the required 2.09 custodians, as determined by the PS Form 4852, to a lesser amount by using the custodial staff to perform the clerk craft and duty of delivering for two hours per day missent mail. The overwhelming evidence supports the Union’s position that the Moss Point facility’s custodial staff have been performing on a regular (emphasis added) basis two (2) hours of clerk craft duties. Nowhere in the custodial job description does one find any reference to duties that could conceivably be misconstrued to include clerk craft duties. In paying the Moss Point custodians two (2) hours of PS Level 6 pay on a regular daily basis, Management recognized that it violated the MS-47 and PS Form 4852 standards of custodial staffing. The Union has met its burden of proof that the Service violated the National Agreement, Article 19, by reference the MS-47 Handbook when it regularly scheduled the two custodial employees assigned to Moss Point to Craft Clerk duties. The use of the custodians for two hours each day to deliver missent mail to other Gulf Coast postal facilities was in direct violation of part 116 of the MS-47 Handbook.
Gary Kloepfer
Assistant Director
American Postal Workers Union, AFL-CIO
USPS Challenges NALC Arbitration Award – Court Sends Case Back to Arbitrator
On or before July 23, 2009, NALC filed a grievance alleging that USPS violated a local memorandum of understanding and Article 8 of the National Agreement when scheduling letter carriers to work overtime.
note: The grievance was initially filed by a NALC branch in Ohio.
Arbitrator Virginia Wallace-Curry heard the grievance and issued an award in favor of NALC on April 30, 2010. In her decision, Arbitrator Wallace-Curry held that the period of liability extended from July 13, 2009, through the date of her award, April 30, 2010. The award expressly acknowledges that NALC only presented evidence up to August 4, 2009.
USPS filed a lawsuit in federal court seeking an order vacating that portion of an April 30, 2010 arbitration decision awarding damages for the period August 5, 2009, to April 30, 2010. USPS was not challenging the arbitrator’s decision that it violated the National Agreement and the Local Memorandum of Understanding, nor the award of damages for the period July 13, 2009, through August 4, 2009.
USPS argued:
The award is not within the arbitrator’s authority as defined by the parties’ collective bargaining agreement.
The award fails to “draw its essence” from the collective bargaining agreement because the arbitrator awarded damages based on no evidence of liability for the period of time from August 5, 2009 to April 30, 2010.
In summary, USPS argues that the portion of the arbitrator’s decision awarding damages from August 5, 2009 forward must be vacated because there was no evidence presented at the arbitration past August 4, 2009. NALC maintained that the arbitrator must have heard and credited evidence of a continuing violation past August 4, 2009, and that the Court should simply remand the case back to the arbitrator to clarify this point.
The District court ruled:
The Court agreed in part and disagreed in part with each side, and determined to vacate and remand that portion of the arbitrator’s decision awarding monetary damages AFTER August 4, 2009. The Court’s role in this matter is to determine whether the record sufficiently supports the arbitrator’s factual findings, AK Steel Corp. v. United Steelworkers of America, 163 F.3d 403, 407 (6th Cir. 1998), and to make sure that the arbitrator did not act beyond her authority by entering an award that lacks rational support. DBM Technologies, Inc. v. Local 227, United Food & Commercial Workers Int’l Union, 257 F.3d 651, 659 (6th Cir. 2001). The date of the incident that precipitated the grievance was July 13, 2009. The problem with the arbitrator’s decision is that she specifically states that “[t]o illustrate the ongoing nature of the grievance, the Union presented evidence up [sic] August 4, 2009,” but two sentences later finds, without any evidentiary support, “[t]he dates from July 13, 2009 to the date of this award must be included in the remedy.”
It is axiomatic that to support an award of damages past August 4, 2009, there must be evidence to support a violation past that date. There may have in fact been evidence produced during the arbitration which the arbitrator credited to support this conclusion, but the arbitrator stated that evidence was produced only through August 4. There was no transcript made of this arbitration, so the Court is not in the position to resolve this factual issue. An additional concern is that there is no indication that the record was supplemented after the hearing, so there seems to be no conceivable basis for an award of damages from the date of the hearing (February 9, 2010) to the date of the decision (April 30, 2010).
Accordingly, the Court VACATES that portion of the arbitrator’s decision awarding monetary damages for the period August 5, 2009, through April 30, 2010, and REMANDS this matter to the arbitrator. If the arbitrator wishes to award monetary damages past August 5, 2009, all she need do is recite that evidence was produced during the arbitration establishing a violation by USPS continuing up to and including the date she is awarding monetary damages
Postal Worker Fired For Improper Use Of FMLA Gets Job Back
This is a summary from an arbitration decision regarding the Postal Service’s decision to discharge a Postal Clerk for Improper Conduct/Providing False-Inaccurate Information on PS. Form 3971 (Request For Leave). The USPS charged Postal Clerk with using FMLA to work second job. This is a summary from an arbitration decision regarding the Postal Service’s decision to discharge a Postal Clerk for Improper Conduct/Providing False-Inaccurate Information on PS. Form 3971 (Request For Leave). The arbitrator sustained the Union’s grievance and returned the grievant to work with back pay, less any compensation received during the period of removal.
The Grievant filed a Certification of a Serious Health Condition for FMLA protected leave from 2007. This document allowed the Grievant intermittent absences, between four (4) and six (6) times a month, based on a chronic health condition. Sometime in late 2008 the grievant’s supervisor was informed that Grievant had been found asleep on the job. Supervisor Mulhall investigated the incident, interviewed the Grievant, who stated that he had a second job and was extremely tired. The Postal Service contacted the Office of Inspector General (OIG) and expressed his concern about the Grievant’s possible misuse of FMLA Sick Leave. Eventually the grievant admitted he worked at Circuit City, but denied submitting requests for FMLA sick leave on the same day(s) he worked at Circuit City.
The Union argues that Management failed to establish just cause for the removal of the Grievant. The Union contended that the crux of the matter is the interpretation of ELM, Section 535.312, which states that “An employee who is in a sick leave status may not engage in any gainful employment unless prior approval has been granted by appropriate authority.” Management’s interpretation of this ELM cite is that an employee who calls in, requesting sick leave, is in that status for a twenty four (24) hour period and cannot engage in any outside employment during that time frame. However, Management’s witnesses could not establish when this twenty four (24) hour period began and ended. The Union contends that nowhere in ELM 535.312 does it state that the covered period is only for twenty four (24) hours.
The Union also disputed Management’s interpretations of this ELM cite. The Union contended that the proper interpretation of the ELM 535 is the employee cannot engage in outside employment while on sick leave, during those hours the employee is scheduled to work his postal position. The Union states that the Grievant worked at Circuit City, during the time frame in question, as a bench technician. His hours of work at Circuit City were from 9 a.m. to 2 p.m. and for the Postal Service from 3 p.m. to 11:130 p.m. The Union argued that the Grievant did not violate the cited ELM provision, since he did not work at Circuit City, during the hours when he was supposed to be working at the Post Office. The hours of the two jobs never overlapped. Management never established that the Grievant was aware of this particular rule in the ELM 535. The Union contends that the removal was punitive in nature and argues that the Grievant had no prior discipline of this nature. They contend that Management violated the progressive concept of discipline outlined in Article 16.1 of the CBA.
As noted above the arbitrator sustained the Union’s grievance, in so doing he stated:
“The Employer’s case is very problematic, since it has not been shown by Management that the Grievant’s actions in requesting his FMLA sick leave was to collect an undeserved compensation, and not based on an existing serious health condition. If his motivation was to seek a financial wind fall as alleged by Management, clearly there would have been more than the three (3) dates in question where Mr. [Grievant] called in for FMLA sick leave. The record reflects that the Grievant worked approximately eighty five (85) days at Circuit City, between the dates of September 18, 2008, and February 25, 2009, yet there are only three (3) dates in question that the Grievant called into the Post Office requesting FMLA sick leave. . . This is not the typical case where an employee calls in requesting sick leave, goes on vacation or works a second job, and upon returning to work, completes and signs a PS – Form 3971 alleging sickness. Under such a scenario, a clear falsification by the employee of Form 3971 can be shown for financial gain. The employee would be clearly hiding the fact of having taken a vacation or having worked, and could be disciplined for not being honest about an illness. . . The Grievant on the other hand, never hid the fact from Management that he was working a second job. Supervisor [] testified that sometime in late 2008, Grievant had been found asleep on the job and when she investigated the incident, Grievant informed her that he had a second job and was extremely tired. There was also evidence, subsequent to this event, that on Sunday’s the Grievant would come in dressed as if he were going to, or coming from church. When Supervisor [] questioned the Grievant about his attire, he again informed her that he was now working a different second job. The Grievant never tried to hide the fact that he had outside employment while also working for the Postal Service. Management knew as early as September 2008 of the Grievant’s outside employment, yet never bothered to caution or warn him regarding ELM, Section 513.312, which it is alleged he violated. It was as though Management, knowing the Grievant had a second job, was trying to set him up for termination. It appears from the record that when the Grievant informed Supervisor [] of his outside employment, she then informed her Manager. . . Management had at least two opportunities to forewarn the Grievant of its concerns, relevant to his outside employment and ELM, Section 513.312 requirements, but failed to do so. As such, Grievant’s outside employment was not unknown to Management and his employment is hereby imputed via constructive notice, and is not a legitimate basis for his removal from Postal employment. Moreover, the Grievant’s work hours at Circuit City were from 9 a.m. to 2 p.m. His scheduled tour of duty with the Postal Service was from 3 p.m. to 11:30 p.m. Evidence failed to establish that the Grievant was working his second job at Circuit City, when he was also scheduled for duty at the Post Office.
Arbitrator Denies Union’s Grievance To Pay Employees Sunday Premium While on Administrative Leave
In a recent national decision, Arbitrator Byars denied the APWU’s grievance challenging management’s refusal to pay Sunday premium pay to an employee while on administrative leave. Arbitrator Byars ruled that an employee who is on administrative leave is not entitled to Sunday premium pay for hours he or she would have otherwise worked on Sunday. click here for summary of the decision
USPS, APWU Await Arbitration Decision On Closing Philadelphia Mail Center
Third-party arbitration between the United States Postal Service and the American Postal Workers Union has come to an end and the two parties are awaiting a decision. More than 500 jobs were relocated when the Philadelphia Logistics and Distribution Center at the Pureland Industrial Complex in Logan Township was closed in February. The former employees claimed the Postal Service did not perform an area mail-processing study before they closed the facility
Full Story: The Gloucester County TimesUSPS, APWU await arbitration ruling in move to close distribution center in Logan Township
Arbitrator Overturns Postal Employee’s Removal For Allegedly Filing Fraudulent OWCP Claim
This is a summary of Regular Panel Arbitrator Michael E. Zobrak’s decision in case C06T-1C-D-09371888 regarding the Postal Service’s decision to discharge the grievant for allegedly filing a fraudulent OWCP claim. The arbitrator found the Grievant was removed for improper conduct in filing an OWCP claim and for providing inaccurate information related to a foot injury he suffered. The Grievant was a long-term employee with a discipline free record that claimed that he injured his foot while reporting to work. He claimed that the injury occurred while he was attempting to avoid a collision with another employee. The Postal Service relied on videos of the Grievant’s reporting for work and a reenactment of the incident. Both videos were found to be inconclusive and did not establish just cause for the Grievant’s removal. The arbitrator returned the grievant to employment and made him whole for all lost wages, seniority and benefits less any interim earnings and government benefits received.
The Union contended that this twenty-year employee was improperly charged with fraud. The Postal Service had failed to meet its burden of proof in this removal. In fact, the Postal Service did not present any proof supporting the allegations raised against the Grievant. The Union pointed out that one cannot see many details on the tape. It simply was not clear what the Grievant said about his turning the corner. The Union objects to the Special Agent lying to the Grievant, while charging the Grievant with lying. There was no prosecution for this alleged fraud. The camera could not record anything that occurred beyond the corner. This entire matter was a case of the Postal Service trying to make more out of the video than was actually there. What the Grievant said to Dreyer was simply a conflict in recollection. During the reenactment the Grievant made gestures pointing toward the area in front of the rest room and the badge reader. The Union requested that the grievance be sustained.
The arbitrator sustained the Union’s grievance; in so doing he stated:
The two videos were played in conjunction with the testimony of almost every witness. This arbitrator viewed the videos each time they were played during the course of the two-day hearing. The area covered by the videos is limited to the entrance hallway. As the Grievant approached the location where he turned left on to the adjacent hallway, the upper portion of his body was not fully seen. The same observation is made of the reenactment video. The inability to see the entire area where the hallways intersect minimizes the value of the videos. It is that observation that leads to the determination that management has not met its burden of proof in this case. No eyewitnesses to this incident were presented by either party. The initial video shows the Grievant walking on the right side of the entrance way and turning left on to the crossing hallway. Nothing else of the Grievant can be seen after that. If, as the Grievant claims, the near collision occurred some ten to fifteen feet into the hallway, it must be concluded that little is learned by the watching the Grievant enter the facility. The Postal Service, however, seeks to have considered the fact that traffic coming down toward the exit shows no sign of disruption. After a pause in the employee traffic only a male employee with a gait or limp is viewed coming down the entrance hallway. What cannot be clearly seen is the traffic at the intersection point. To that extent the initial video fails to provide any concrete proof as to what happened after the Grievant turned left. The Postal Service also relies on the reenactment video, also shot with the same mounted camera. There is no sound associated with the video so it cannot be determined what the Grievant and Dreyer are saying. The Postal Service maintains that the Grievant initially indicated that the incident occurred at the intersection point, not after he turned into the hallway. The Postal Service relies on hand gesture made by the Grievant as he explained to Dreyer what happened. After viewing the video on several occasions it must be concluded that the gestures, or shadows of gestures, are not sufficient to determine what was said by the Grievant during the reenactment. Again, it is found that the video does not provide sufficient evidence that the Grievant filed a false OWCP claim and lied to management concerning the incident.
The Postal Service’s reliance on the videos does not provide just cause for the Grievant’s removal. As stated above, having viewed the videos on several occasions during the two days of hearing, it must be found that they are inconclusive at best. Based on all of the foregoing, and for all the reasons set forth herein, it is found that the Postal Service has not met its burden to establish just cause for the Grievant’s removal. The Grievant is to be returned to employment and made whole for all lost wages, seniority and benefits less any interim earnings and government benefits received.
Gary Kloepfer
Assistant Director
American Postal Workers Union, AFL-CIO
APWU: Arbitrator Denies Union’s Challenge To USPS Two-Tour Initiative
Arbitrator Issues Decision in Dispute Over Two-Tour Initiative
Arbitrator Das denied the union’s grievance challenging the Postal Service’s two-tour initiative. Das accepted the Postal Service’s argument that “Article 3 of the National Agreement grants the Postal Service the authority to unilaterally adopt and implement the … initiatives at issue, without further bargaining with the Union.” He cited language in Article 3 that states the Postal Service “‘shall have the exclusive right’ to ‘assign … employees,’ to ‘maintain the efficiency of the operations entrusted to it’ and to ‘determine the methods, means, and personnel by which such operations are to be conducted.’” Das also cited a 1977 national award in which Arbitrator Garrett stated that the Postal Service isn’t obligated “to engage in ‘collective bargaining’ as to whether or how it should exercise its authority under Article III of the National Agreement.” In addition, he referred to a 1973 national award in which Arbitrator Gamser stated that the right to change tour complements “appear[s] [to be] specifically reserved to Management under Article III of the Agreement as well as dictated in enabling legislation, Section 1001 of the Postal Reorganization Act.” (USPS #Q06C-4Q-C 09051867; 7/27/2010)
Click here for a summary and copy of the decision
Postal Maintenance Employees To Split Almost $92,000 For USPS Subcontractor Work
This is a summary of Regular Panel Arbitrator Andrew M. Strongin’s decision in case H06T-1H-C 08374323 regarding the Postal Service’s decision to subcontract the disassembly, transport, and installation of a Low Cost Tray Sorter from Cincinnati, Ohio to the West Palm Beach P&D. The Union contended that the work was subcontracted without the prerequisite “due consideration” of the five factors of Article 32.1.A of the National Agreement, and asked that all affected employees be made whole[1]. The Arbitrator sustained the Union’s grievance by ruling the Postal Service failed to give due consideration to the five factors of Article 32.1.A of the National Agreement, and that a make-whole award was appropriate. He found the Service’s repeated and continuous failure to provide relevant remedial information to the Union up to and including the date of hearing, and the lack of evidence that such information could be provided at arbitration that the remedy shall be measured by the only currently available evidence, which is the Maintenance Manager’s estimate of the subcontractor’s labor cost, as contained in his belated Article 32 analysis.
In requesting a make-whole remedy, the Union emphasizes that it timely sought from the Service, but even to date has not been provided, information relevant to the cost of the subcontract and the number of hours worked by the subcontractor’s employees. Based on the Service’s failure to provide the requested information, the Union argued that the appropriate measure for a make-whole remedy is the only evidence that exists in the record, which is the Service’s own estimate of the labor cost as set forth in Goodrich’s belated Article 32 analysis, or the lump sum of $91,580.00, to be divided between all affected employees.
Ruling for the Union the arbitrator correctly reasoned:
Ordinarily, a make-whole remedy in a subcontracting case would turn not upon the estimated labor cost of a subcontract, but instead on some measure of actual damages. Arbitrators differ over the question whether such actual damages should be measured, for example, by the subcontractor’s labor cost or by the number of hours devoted by the subcontractor to bargaining unit work, whether at straight time or overtime rates. In cases where evidence of actual damage is not available or is difficult to discern, it is not uncommon for questions of remedy to be returned to the parties for settlement. See, e.g., Case No. H7C-NA-C 36 (Mittenthal 1993) (“It may not be easy to construct a money remedy or to identify the injured employees. But the parties have been confronted in the past by remedy problems every bit as complicated as this one and they have been able through hard work and imagination to fine a mutually acceptable solution.”). . . Appropriate respect for the proper functioning of the grievance procedure generally, and the process for requesting and providing relevant information specifically, counsels in favor of an award of the estimated labor costs ($91,580.00) to be divided among all affected employees. The Service’s desire to limit the amount of the make-whole award is understandable, but the Service cites no contractual authority or arbitral precedent for limiting the award to the difference between the hours worked by bargaining unit employees during the time of the subcontracting, and the total hours they could have been required or allowed to work under the Agreement at that time. The Arbitrator rejects as inadequate that proposed measure of damages. Full employment of available employees generally is not a defense to subcontracting violations under the parties’ Agreement and related arbitral precedent with which the Arbitrator is familiar, and it bears noting that such a limitation on a make-whole remedy would permit the Service to violate Article 32.1 with virtual impunity in any facility where employees are fully occupied.
Gary Kloepfer
Assistant Director
American Postal Workers Union
Arbitration Decision: USPS Failed to Give Full Consideration To Employee’s Request For Voluntary Transfer
An arbitration decision sent out by Gary Kloepfer to APWU Union officers and members.
This is a summary of Regular Panel Arbitrator Andres M. Strongin in case H06T-1H-C-08255189 regarding the Postal Service denial of an employee’s request for voluntary transfer. The arbitrator sustained the Union’s grievance; he ruled the Postal Service violated grievant’s right to request a transfer under Article 12.6 of the National Agreement and the Memorandum of Understanding Regarding Transfers by virtue of its failure fully and fairly to consider his work, safety, and attendance records.
The grievance protests the June 11, 2008, denial of grievant’s request to transfer from West Palm Beach to the Miami P&DC, due to an unacceptable attendance record. The Union claimed that the denial was arbitrary and capricious, in violation of Article 12.6 and the Memorandum of Understanding Regarding Transfers.
The Union contended that the Service’s denial of grievant’s transfer request was arbitrary and capricious in violation of Article 12.6 and the Transfer MOU, which requires the Service to give full and fair consideration to transfer requests such as grievant’s. The Union emphasized that there is no evidence to support the Service’s consideration of any factor other than grievant’s attendance, and that even that factor was insufficiently considered in light of Suarez’s admitted failure to consider anything beyond the raw numbers on the Form 3972′s.
The arbitrator sustained the Union’s grievance; in so doing he noted:
Given the facts of this case, the language of the Transfer MOU provides a natural starting point for the analysis to follow. As the MOU provides at Section D, Suarez, as the gaining installation head, was required to give full and fair consideration to grievant’s work, safety, and attendance records. While Suarez obviously is entitled to conduct his own evaluation of those records, the provision of the MOU requiring the losing installation head to be fair in his evaluation, effectively requires the conclusion that the record on which Suarez’s “full and fair consideration” is to be based, must include consideration of the losing installation’s evaluation, which itself must be “full and fair.” . . . . the Service’s inability to demonstrate any consideration of grievant’s work and safety records would require judgment in favor of the Union. As the Transfer MOU and both parties’ citation to arbitral precedent makes clear, the Service is required to consider all three factors – work, safety, and attendance – even if its decision ultimately is based on only one. As the Transfer MOU and related cases make clear, perfection is not the standard for consideration of transfer requests.
Gary Kloepfer
Assistant Director, Maintenance Craft
American Postal Workers Union, AFL-CIO
note: the title of this summary was created by PostalReporter as Mr. Kloepfer had a different title in his email.