Arbitrator Rules USPS Violated Contract By Subcontracting Installation Of Postal Equipment
Filed under: APWU, automation, maintenance, postal, postal news, usps
From Gary Kloepfer. Assistant Director, American Postal Workers Union, AFL-CIO
This is a summary of Regular Panel Arbitrator Leroy R. Bartman in case H00T-1H-C-03081013 regarding the Postal Service’s purchase of a Low Cost Tray Sorter which was installed by the manufacturer. The arbitrator ruled the Postal Service violated the Collective Bargaining Agreement and ordered the bargaining unit to be whole. Read more
Arbitration Panel Rules USPS Violated Randolph-Sheppard Act At Chicago P & DC
“Thus, the panel majority ruled that USPS must compensate the SLA 100 percent of vending machine income for all of the vending machines located in the rotunda and in the cafeteria at the Chicago Processing and Distribution Center in accordance with the income sharing provisions of the Act and implementing regulations at 34 CFR 395.32 as of September 21, 2006.”
Arbitration Panel Decision Under the Randolph-Sheppard Act
Summary:
The Department of Education (Department) gives notice that on July 17, 2009, an arbitration panel rendered a decision in the matter of the Illinois Department of Human Services, Division of Rehabilitation Services v. United States Postal Service, Case No. R-S/06-14. This panel was convened by the Department under 20 U.S.C. 107d-1(b) after the Department received a complaint filed by the petitioner, the Illinois Department of Human Services, Division of Rehabilitation Services.
Background
The Illinois Department of Human Services, Division of Rehabilitation Services, the State licensing agency (SLA) alleged violations by the United States Postal Service (USPS) of the Act and the implementing regulations in 34 CFR part 395. Specifically, the SLA alleged that USPS violated the Act, the implementing regulations, and the vending permits held by the SLA concerning a vending machine facility operated by a blind vendor at the USPS’s Chicago Processing and Distribution Center.
According to the arbitration panel, the issues to be resolved were: (1) Whether the USPS cafeteria operations are exempt from the Act and whether the vending machines operated by a private vendor at the Chicago Processing and Distribution Center are in direct competition with the vending machines operated by the SLA’s blind vendor; (2) Whether the no-commission contracts let by USPS for cafeteria vending violated the Act, and what compensatory damages, if any are due the SLA; and (3) Whether the SLA may amend its complaint against USPS to address information which surfaced during settlement negotiations, namely, whether USPS violated the Act, its regulations, and the vending permits by closing Break Room A and removing the vending machines for 34 days, and what compensatory damages, if any, are due the SLA.
Arbitration Panel Decision
After hearing testimony and reviewing all of the evidence, the panel majority ruled that: (1) USPS cafeterias are not exempt from the protections of the Act, including the vending machine income sharing provisions; (2) The vending machines operated in the cafeteria at the Chicago Processing and Distribution Center by a private vendor are in direct competition with the blind vendor and are subject to the 100 percent income sharing provisions under the Act; and (3) The no-commission contracts let by USPS for cafeteria vending machines at the Chicago Processing and Distribution Center under its break-even policy violated the purpose and terms of the Act and implementing regulations.
Thus, the panel majority ruled that USPS must compensate the SLA 100 percent of vending machine income for all of the vending machines located in the rotunda and in the cafeteria at the Chicago Processing and Distribution Center in accordance with the income sharing provisions of the Act and implementing regulations at 34 CFR 395.32 as of September 21, 2006.
The panel majority further ruled that the USPS must pay interest at the Federal interest rate and the method of calculating interest should begin only at the end of the month in which the income originally would have been earned by the blind vendor and continue forward from that time. Additionally, the panel majority determined there was no need to allow the SLA to amend its complaint because those issues had already been resolved.
One panel member dissented to a portion of the decision regarding the monetary remedy award. Specifically, it was this panel member’s belief that within 30 days following the date of the arbitration panel’s decision, USPS should compensate the SLA the amount of $5,934.70 for income lost by the blind vendor from January 29 to March 3, 2007, resulting from violations of the Act. Also, this member believed that USPS should compensate the SLA the amount of $318,600 for income lost by the SLA and blind vendor as a consequence of vending machines operated by a private vendor in direct competition with the blind vendor in violation of the income sharing provisions of the Act and the relevant permits. Finally, this member believed that USPS should pay the SLA interest in the amount of $17,556.83 calculated at 5 percent per annum, compounded.
APWU: Arbitrator Overturns Advance Sick Leave Denial
Denying an employee’s request for advance sick leave based solely on the grievant’s low sick leave balance doesn’t make sense. Why else would a person need advanced sick leave?
http://www.usps.com/cpim/ftp/manuals/elm/html/elmc5_003.htm#ep444505
Article 10 – Advance Sick Leave Denial
This is a summary of Regular Panel Arbitrator Timothy Buckalew’s decision in case B06T-1B-C-08264489 regarding the Postal Service’s decision to deny an employee’s request for advance sick leave based solely on the grievant’s low sick leave balance. The arbitrator sustained the Union’s grievance; he ruled the Postal Service violated Article 19 of the contract because there was not a rational basis for the decision to deny the grievant’s request for advanced sick leave under ELM Section 513.511. In so doing, he ordered the Postal Service to advance sick leave to cover the period of the absence and otherwise make the grievant whole.
The grievant filed a written request for Advance Sick Leave on the form provided by local management requesting 120 hours of advance sick leave to cover hospitalization and post-hospitalization recovery for the period May 31 to June 20. In his letter accompanying the formal request, the grievant informed his Plant Manager that he had recently been hospitalized for pneumonia which had aggravated his chronic congestive heart failure, a condition which had caused numerous absences since 2003 that were covered by FMLA, and which had caused him to use all of his sick leave. The grievant submitted medical documentation, that is uncontested here and was accepted by his supervisor and Plant Manager. The grievant’s request for Advance Sick Leave was denied; according the Plant Manager, “The reason for this decision is that your history of sick leave usage indicates a great probability that you will not be able to reimburse the U.S. Postal Service for the advance.”
The arbitrator stated in his decision:
The plain language of the ELM is the source of this conclusion. While it is clear management is not required to grant requests for advance leave, arbitrators have uniformly held that the discretion recognized in Section 513.511, the installation head must consider the facts of each case and make a make a reasoned consideration of the facts to determine if the employee meets the preconditions for advanced leave and if there is reason to believe the employee will return to duty. . . The remaining question posed by this grievance is whether the plant manager’s decision to deny Sparacio’s request based solely on his history of sick leave usage. . . I agree generally with this concept. If management has discretion to administer the provision it follows that decision makers must have some latitude regarding the factors they consider. Advanced leave is not a matter of right, and management is permitted to look at numerous factors, including attendance history, but the majority of cases emphasize that a low or zero balance of sick leave should not be treated as an automatic disqualifying factor.
Gary Kloepfer
-end-
APWU Wins Important Maintenance Subcontracting Grievance
APWU News
The union won a major victory against subcontracting Feb. 10, when Arbitrator Shyam Das directed the USPS to assign Maintenance Craft employees to maintain computers at approximately 8,000 of the nation’s largest associate offices. The arbitrator also instructed management and the union to discuss the possibility of assigning additional computer maintenance work at AOs to the Maintenance Craft. Read more
APWU Wins "Casuals In Lieu" Of Arbitration For Rogers Arkansas Clerks
Article 7 – Hiring Casuals in Lieu of Career Bargaining Unit Employees
This is a summary of Regional Arbitrator Glenda M. August’s decision in case G06C-4G-C-08248741 regarding the Postal Service’s decision to hire a casual employee to replace an enlisted military employee. In this case a career postal employee enlisted in the Military. Management hired a casual employee to fill the career employee’s position after he announced he would be in the Army for a period of not less than four years.
The Union alleged that Article 7.1.B.1 was violated when a casual employee was hired in lieu of a career employee. According to the Union Article 7.1.B provided that casual employees could be hired for term limit of 360 calendar days, however four years was excessive. The Area guidelines could not be used to replace the mandate of Article 7; the Union further argued the trigger guidelines were implemented to be used as support when hiring short term workforce. According to the Union to hire a casual for a period of five years in the absence e of a career employee was not a proper use of supplement workforce. In support of its argument the Union cited the Das award (Q98C-4I-C-00100499) and the Downes Memorandum.
The arbitrator issued a cease and desist order and ordered the Postal Service to hire a career employee. In addition the arbitrator ordered the Postal Service to pay the clerk craft employees for those hours worked by the casual at the overtime rate.
The arbitrator properly noted in her award:
Management had a mandate t utilize casual employees for heavy loads of work or short terms as supplemental workforce. Where it was reasonable t believe that the employee would be away from his Postal employment at a minimum of five years, Management had no justification to assert that the hiring of a casual was within the guidelines of the National Agreement. Although Article 7 allowed Management to hire a casual for 360 days, the hiring of five to seven casuals to cover the military absence was not the intent of the authors of the National Agreement.
New Hampshire Letter Carriers Awarded $30,000 For Postal Management Deleting Time Clock Rings
From PostalReporter reader: Our Union is in receipt of the attached arbitration case. It has awarded close to $30,000 to letter carriers in the Milford Post Office (New Hampshire) . It also includes some retirees and transfers from the Milford Post Office. The case deals with Postal Managers that “Stole Time” from the electronic time card records of letter carriers that worked overtime. The Managers were found guilty in arbitration but it appears never charged with a crime. I do not even think they received discipline.
This is not right to come to work and have a manager steal time from us. I have been a letter carrier for many years and I have never stolen anything. We took an oath! These managers stole from us and did not even get disciplined.
Arbitration Award Summary
Management violated Article 19 of the National Agreement when they altered Milford City Carrier clock rings for the period 2003-2008. The grievances are sustained. For a remedial award I find:
1. The Service agreed based on the evidence, that all the carriers who were adversely impacted by the altered clock rings are entitled to a make whole remedy for the period 2003-2008; the details to be worked out by the parties. Thus, all employees adversely impacted by the altered click rings are to be made whole.
2. Management at the Milford Post Office engaged in a pattern of intentional, repeated and flagrant violations of the contract when they altered the City Carrier clock rings for the period 2003-2008. Management’s violations were so egregious over a period of many years that punitive damages are warranted to deter the Service from further clock ring violations. This, I award $1500.00 to all current career city carriers at the Milford, New Hampshire PO.
3. As a result of Management’s contractual violations, part-time flexible carriers West and McGaughey were not converted to full-time regular status. Based on the documentation presented, I conclude that PTF carriers West and McGaughey are qualified for conversion to full-time status. I find that PTF carriers West and McGaughey are to be converted to full-time regular carriers, effective 30 days from the date of the award, into the two positions curreently being withheld under Article 12.
Also: Specifically over a six year period Supervisor Cohen and Postmaster Mottlard deliberately made 805 changes to carriers pay and thousands of changes and modifications in clock ring codes in violation of the National Agreement resulting in loss of pay to the carriers. Moreover in one year ther were several weeks of training time that affected the carriers jobs in a seven route office. Supervisor Colen put carriers in for training time when they were actually working. For example, in 2005 there were over 9 weeks of training time recorded although there were only seven full-time letter carriers and two part-time flexible carriers. Falsely listing the carrier training time negatively affected the evaluation of the routes.
Sherri Rose Talmadge, Esq., Arbitrator
Related link: Postal Manager of Somersworth Post Office Escorted From Building By OIG