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  1. 1. Contentions for NALC Grievance #042613APBIt is the position of the Union that local mgt at Capitol View Station (CVS) have violated each of theArticles of the National Agreement in the manner listed in Box 15 on the 8190 when they issued a Letter ofWarning to Kathy Blank (the grievant).Id like to point out that this grievance is timely. The LOW was given to the grievant on 04/25/13. TheUnion met with supervisor Wendy Porter within the 14 days. The Union submitted the 8190 to station managerRoger Bounds within 7 days asking for a Formal A meeting. The Union then met with Roger Bounds for theFormal A meeting on 05/21/13. The timelines have been satisfied.First, we would like to point out that the Union objects to mgt issuing discipline based solely on MSPdata. Mgt argues that the grievant admitted to missing the scan but this is not true and is contradicted by thegrievant in her interview on page 3. Mgt asked the grievant several days after the scan was allegedly missed whyshe might have missed it. The grievant has 18 total MSP scans on her route. Mgt alleges that she missed a scanon April 03 but then talks about it to her almost a week later. Thats approximately 90 scans later. What thegrievant did remember was that was the day that she got back to the office early for her Dr appt. She did NOTadmit to not scanning it. Since mgt has decided to do PDIs days after the alleged missed scan in an attempt todeny carriers the right to properly defend themselves, mgt has instead solely used the MSP data report to justifyissuing discipline to the grievant.As you can see from pages 20-21, MOU-01458 states that mgt may not discipline based solely on MSPdata alone. It may be used in conjunction with other data to justify discipline. Mgt has NO other data to justifydiscipline. Simply an MSP report that shows a scanned label failed to download. Mgt arguing that they aredisciplining her based on a lack of MSP data is simply semantics at its worst. Their evidence is a MSP datareport but they arent using MSP data to justify discipline. Mgt contradicts themselves at every turn. The Unioncites arbitrator Dilts in C-20350 when he makes clear that mgts only proof of a carrier not scanning an MSPlabel is MSP data which can not be used to discipline carriers by itself.There are good reasons as to why we should not be disciplined solely on the basis of MSP data. For onething we have no way of proving ourselves innocent. Unlike delivery confirmation or accountable mail scans wecan not go into the scanner and verify that MSP scans were made. We can scan an MSP label all day long andthen have mgt tell us that we missed it.Mgt makes the argument that Arbitrator Hamrick ruled in case C06N-4C-D 11251077 that carriers couldbe disciplined based on MSP data. This argument has little merit. For one thing, this was a regional arbitrationthat has no hold over Jefferson City, Mo. For another, arbitral precedent is contrary to the opinion of arbitratorHamrick. Also, the above case is totally different than this case. In that case Arbitrator Hamrick determined thatthe grievants did not scan their MSP labels and that was why they were disciplined. Mgt proved to thearbitrators satisfaction that the grievants did not scan the labels. The arbitrator also considered the fact that thegrievants had already had several instances of adjudicated discipline in their file for the exact same offense. Thisis not true of the grievant in this case. She not only has no discipline for MSP scanning but has no discipline inher file for anything!!Second, the Union argues that mgt is issuing discipline punitively instead of correctively. This is aserious breach of the Just Cause principles listed in the JCAM. Mgt has made no attempt to address any allegeddeficiencies on the grievants part. As you can see from page 4, the grievant has never been offered retraining orany training. Mgt alleges that theyve given the grievant an official job discussion but there is no evidence ofthat. In fact, the grievant explicitly states that she was only told that she missed a scan at her case by station mgrRoger Bounds. He then told her that if she missed one more scan she would be given a LOW. The grievant is thecarrier on CR041. As you can see from the MSP weekly scanning reports the grievant has as good of a scanningrecord, better than many, as anyone in the office. Mgt has made only a superficial attempt to correct any allegeddeficiencies and then have tried to claim otherwise.
  2. 2. In fact, after the LOW was given, the grievant started keeping notes of when she actually scanned MSPlabels. Station mgr Roger Bounds told her she missed another scan and she showed him that she couldnt havemissed it and showed him the time she scanned it. He then alleged that she must have had her scanner set upwrong but when he checked it it in fact was proven to not be set up wrong. Mgt has simply embarked on amission of issuing discipline regardless of what the facts say and refuse to hear any other option.Third, the Union would like to argue that this discipline, and mgts superficial investigation, areuntimely. Mgt alleged the grievant missed an MSP scan on April 03. They do a PDI on April 09. They then writea LOW up on April 11. They then issue it to the grievant on April 25. Two weeks after LOW was printed. Thegrievant is on the overtime desired list and works 6 days a week on some weeks. The grievant has 18 MSP labelson her route. Thats a total of 324 MSP labels between the time she was alleged to miss a scan and the time shesissued a LOW. This entire endeavor by mgt has been done in a way to deprive the grievant of her due processrights and a chance to defend herself. One of the principles listed in the JCAM of Just Cause is “was disciplineissued in a timely manner”. Waiting a week to do a PDI after an alleged missed scan, then waiting 2 weeksafter printing off a LOW to issue said LOW, is simply mgt attempting to keep the grievant from properlydefending herself against their MSP report. With the sheer volume of MSP scans, delivery confirmation scans,accountable mail scans, etc., it if difficult if nigh impossible to remember ONE scan out of the hundreds.Another principle of Just Cause is “Was a thorough investigation completed??” The answer is anobvious “NO”. Mgt can only argue to printing off MSP missed reports and a vehicle utilization report thatshowed that the grievants vehicle on that day did not have its mileage in there. As none of this was brought toanyones attention until almost a week later its now impossible for the Union to prove otherwise. If the MSPmissed report shows a missed scan then it will automatically not show the mileage of the vehicle regardless ofthe reason as to why the MSP label did not show up. The report shows only that the mileage didnt download.This is common and in multiple cases when mgts reports show that the mileage didnt download they check thescanner and the vehicle and the mileage was correct. It simply didnt show up in the system.Also, the grievant alleged during her PDI that maybe the scanner didnt remember the scan. Mgt made noattempt to even check this out. They simply assumed it wasnt true. In the IMD user guide (pages 45-46) it listsproblem solving. Under the problem solving it lists several problems the IMD could be having. One of them is“incomplete data transmissions between IMD and IMD cradle”. This alone shows there is the potential forSOME of the data to be transmitted meaning not ALL of it could have come through. It then lists severaltroubleshooting options. 1 – check that the device is properly docked, 2 – check cable connections from themodem or LIM computer to the IMD cradle, and 3 – contact the help desk or see your system administrator. Andyet if you look at the interview with supervisor Wendy Porter on page 5, when asked what troubleshooting shedid when confronted with this problem she states that she checked the vehicle utilization report and the MSPmissed report. She did NONE of the troubleshooting listed in the IMD user guide for this exact problem. Shesimply assumed it wasnt true and didnt bother checking like she was supposed to do as part of her investigation.The grievant deserved to have mgt to a proper investigation and yet was denied.Mgts Formal A representative said during the Formal A meeting that he always asks carriers who arealleged to miss an MSP scan whether or not they scanned a certified or a delivery confirmation label at the sametime they scanned an MSP label. As you can see from the interview on page 4 this is untrue. Mgt had a standupon May 16th, 2013 where they imparted this information for the first time to letter carriers. No one had been toldthat if they scanned a delivery confirmation or certified letter within 1 minute of an MSP label that it might nowshow up. Mgt never even investigated as to whether or not this was what was making some labels not show up.In light of this serious and new information that was finally released to letter carriers all discipline should bethrown out just on general principles.Fourth, mgt has discriminated against the grievant. She has been held to a different standard than mostcarriers in our office. As you can see from the MSP weekly missed scan reports, the grievant on CR041 showsthat that route missed three MSP scans over a 2 week period. With 18 scans on her route, multiplied by 12 days,
  3. 3. that gives a total of 216 potential scans. Missing 3 scans is a 98.7% scan rate. This report doesnt even show thatthe grievant is the one who missed all 3 of these scans or if her T-6 replacement or auxiliary assistance missedthem. As you can see from these reports there are 19 routes at CVS that missed either the same amount of scans,or more, during the same time period. In an office of 38 city routes and 1 truck/express route half of these routeshave exactly the same or worse scanning percentages than the grievants route and yet the grievant is one of only3 carriers in this office that have been disciplined for allegedly missing MSP scans during this same period. Howcan mgt justify holding the grievant to a higher standard, and issuing her discipline when they look the other wayfor many other carriers??One of the key principles of Just Cause listed in the JCAM is “was the discipline in line with whatsusually administered??” The record shows that what mgt usually does is look the other way for most carriers.How can they now justify disciplining only a few when the record shows that other carriers are getting awaywith worse??Also, as you can see from the Vehicle utilization report on page 19, the grievant was one of 3 carrierswhose mileage didnt download that day, Mike Theroff on CR035 and Joe Kennedy on CR019 being the othertwo. As you can see from pages 11-14, CR035 missed 2 scans in just 1 week. CR019 missed 2 as well. Why areneither of them being disciplined?? None of them have even been talked to.Fifth, the Union alleges that mgt is attempting to institute new work standards that were nevercollectively bargained for with the Union. It is unreasonable to expect carriers to be 100% perfect. There isnothing in our National Agreement that states that. The Union has agreed that carriers will scan MSP labels whenthey come to them. Expecting perfection though is unrealistic. Even if the DRT or an arbitrator is persuaded thatthe grievant did not scan the alleged MSP scan, without any proof on mgts part that the grievant was willfully ordeliberately failing to scan MSP scans it is difficult to justify discipline for something no carrier in our entireoffice is perfect at.As you can see from page 2, mgts Formal A representative stated during the Formal A meetingthat he is holding carriers in our office to a 99% scanning standard, not 100% as the Union alleges. Thisis an arbitrary standard that mgt can not explain how they even arrived at. It wasnt negotiated andMOU-01458 states explicitly that MSP data doesnt set performance standards. It is inappropriate formgt to now arbitrarily come up with their own percentage that carriers must make to avoid discipline.MOU-00209 states that changes in work or time standards will be initiated only at the national level.Every case should be decided on the merits. Not on a percentage of scans that show up on a report. Mgthas no right to implement this new performance standard. Also, as the MSP weekly missed reportsshow on pages 11-14, mgt doesnt hold all carriers to this standard. Only some.Also, one of the principles of just cause is “is there a rule and if there is a rule is itreasonable??” As you can see from the grievants interview on page 4, the grievant denies ever beingtold there was a 99% standard for letter carriers. She thought we were supposed to make them all. Mgthas never told our carriers of what the rule was. How can they now expect to discipline carriers for notmeeting a standard they never told us of?? Also, as the MSP weekly reports show on pages 11-14 thegrievants route showed a 98.7% scanning rate. How can mgt now justify discipline based on a .3%variance?? Is that reasonable?? Even in regards to negotiated standards such as 18 & 8 it is a wellestablished principle that carriers can not be disciplined simply for not making standard. M-39 Section242.332 states: “No carriers shall be disciplined for failure to meet standards, except in cases ofunsatisfactory effort which must be based on documented, unacceptable conduct that led to thecarriers failure to meet standards.” Mgt has done none of this. Theyve simply printed off a form thatshows a label failed to download and now have issued discipline for failing to follow instructions fornot meeting a new, arbitrary 99% standard that no one knew about. 99% over what time frame?? 99%over a two week period?? Over a year?? A month?? If a carrier is 99% on average throughout a quarter,
  4. 4. but dips below 99% for 1 week, may they then be disciplined?? Mgt has never informed us of this. Acarrier that has 18 MSP scans on his/her route, and works 5 days a week, will scan 900 scans over a 10week period. Mgt alleges that they want 99% scanning efficiency from their carriers but since theywont give us a time frame for it a carrier could literally miss 9 scans over this time frame and be withinmgts imposed standards. But if 2 happens in 1 week, and 1 in the next week, mgt goes ahead withdiscipline. The carrier may very well be scanning at 99% over the long term but dip below it at 1 periodof time or another. The Union requests that this arbitrary scanning standard bethrown out as well as a remedy.Sixth, when the grievant was told by station mgr Roger Bounds that if she missed one morescan she would be given a LOW it was obviously preordained that she would be given one. Thisremoved the immediate supervisor, Wendy Porter, from the decision making loop. Her boss decidedthat the grievant would get a LOW for her next missed scan but would now have you believe thatsupervisor Porter retained the ability to reach her own decision on whether or not discipline waswarranted. That is a stretch of the imagination. One of the principles of issuing discipline enshrined inour contract is that discipline should come from the grievants immediate supervisor. This is the personthat is most familiar with the grievants work history. Not some station mgr who sits behind a desk in aback office reading emails.We would also point out that this deprived the grievant of her due process rights. SupervisorPorter met on this grievance at the Informal A. Since she knew that her boss had issued the disciplineshe was not able to resolve this grievance at the lowest possible level as provided for in Article 15. Shesimply had to send it up to the next level as the decision was taken out of her hands. Mgt does not evendeny that any of this actually happened. They simply keep trying to say that supervisor Porter made thedecision in the face of all the evidence to the contrary. This grievance could have been thrown out atthe lowest possible level on its merit and instead has to go further because the discipline came from thestation mgr and not the front line supervisor. As you can see from the Disciplinary Action Proposal onpage 17, it specifically says that the supervisor who is filling it out is “requesting” discipline. Whenasked, supervisor Porter stated that she was requesting the discipline from herself. The Union wouldcontend that this explanation is hard to believe.Seventh, the Union alleges a violation of Article 31. The Union has a right to requestinformation that they believe will be instrumental in processing grievances. The Union makes a strongcharge that the scanners we use are not flawless in any way. Any system designed by human beings willhave flaws just like the human beings that designed them. For mgt to claim otherwise shows simpleignorance. Since 2011 (pages 29-30) the Union has requested maintenance and manufacturing data onthe IMD scanners. This request was again made recently as you can see from page 10. Mgt simplywrote “N/A” next to these requests. They made no effort to get the data we requested. They didnt makeany phone calls. No emails were sent. They simply refused the request. This was a blatant violation ofArticle 31.The Union has several witness statements from other carriers in this packet that show theyvehad problems with their scanners as well. The statement from the Union President on pages 6-7 showthat he was alleged to have missed a scan even when he had a witness who saw him scan it. Whenmgts report shows that a scan was missed even when a witness saw it scanned this alone shows thatthere might be serious flaws in the system whereby not all scans will always show up. The IMDscanners have been in use for over half a decade. It is therefore reasonable and germane to the issue torequest maintenance data and manufacturing data. Every system used by the USPS, including CFS &
  5. 5. DPS, have error rates. Usually of 2% or greater. Mgt would have you believe the error rate of the IMDscanner is 0. This is belied by common sense. The Union NEEDS this information so as to mount aproper defense for their member. To deny us this information is to deny the grievant due process andviolate federal law. It is now the subject of a labor charge as well as you can see from page 73.Even mgts own actions suggest there is something wrong with the scanners. Mgt alleges thatthe grievant has a problem making her scans of sufficient magnitude to warrant discipline but even theyonly disciplined her for one of the alleged missed scans of the 3 that it shows her route missed during a2 week period on pages 11-14. 1 they talked to her about at her case. 1 they disciplined her for. And the3rd?? Apparently they believe as well that the 3rdmust have been a system error or they would havedisciplined her for it as well.As you can see from page 43, the OIG issued their reasoning as to why the USPS shouldtransition to the IMDs from the MDCDs in the first place. They listed that the MDCDs had reachedthe end of their useful life and their error rate had increased over the past few years. The MDCDs weredeployed at the end of 1998 and phased out in 2005 because of their increasing error rate. The Unionincludes the original statements about the MDCDs contract issuance in 1997 on pages 68-69. TheIMDs have been in use approximately the same period of time and yet mgt argues they are error free.How is this possible?? All the more reason for mgt to hand over the manufacturing and maintenancedata so that we can see for ourselves what the real error rate of the IMDs is. If the carriers scanningpercentage is approximately the same as the error rate of the scanners then no discipline is warrantedbut mgt is deliberately hiding this data.As you can see from pages 70-72, the USPS had issued a new contract proposal for a newvendor to supply services such as maintenance and performance data for the IMDs. Yet they now claimthat this information is not available. Its obvious that the data is available but just not to the Unionwhen filing a grievance.Also, as you can see from pages 53-61, the Union has had problems in the past with mgtrefusing to supply requested information. Mgt has even agreed that they will pay a $25 penalty per dayfor not supplying information within 24 hours. The Union requests this as a remedy as wellfor this grievance.Eighth, the Union charges that mgt is still talking to grievants at their cases on the workroomfloor about alleged deficiencies and then calling it a “job discussion”. The Union charges that a carrierwho allegedly misses approximately 1% of her scans out of hundreds is at the most worthy of a jobdiscussion and probably not even that. The Union though charges that the grievant never received a jobdiscussion in spite of mgts protestations to the contrary. Job discussions are supposed to be in privatebetween the employee and the supervisor. It is NOT supposed to be done on the workroom flooramongst the employees coworkers so that everyone can listen in.In a prior grievance on this same issue (pages 37-40), the DRT pointed out that mgt did notprove that they had taken the carriers into the office to do job discussions and that they had insteadtalked to the carriers at their cases. The DRT emphasized that job discussions are supposed to be inprivate.We would also like to point out that mgt in no way even considered the grievants priordisciplinary record before issuing her a LOW. The grievant has been a letter carrier since 1989 and has
  6. 6. never been disciplined once for any reason. The grievant has built up a bank of good will in her 24years of service that has been ignored by mgt. Arbitrators have long held that mgt must consider theoverall disciplinary record of a carrier before issuing discipline. Mgt ignored this crucial step in theirrush to discipline.Mgt made the argument that discipline was justified because offices like Columbia, Missourihave allowed discipline for their carriers for the same offense. When we checked though we found thisto be untrue. On pages 65-67 you can see the local settlements on this discipline from Columbia. Theyhave agreed with their mgt team on reasonable settlements that agree there can be many reasons as towhy MSP scans dont show up. Unfortunately, our local mgt team does not have the ability to be soreasonable.We would also point out that the charges on the LOW arent specific as to how the grievantviolated the specific charges. Mgt charged the grievant with failing to follow instructions but includeno evidence as to how she failed to follow instructions. By not scanning 99% of her MSP labels?? Shewas never instructed to do this so how could she have failed to follow this instruction?? Mgt chargedthe grievant with violating Section 112.21 of the M-41 that states that she should obey the instructionsof her manager which would mean she disobeyed an instruction. The dictionary defines disobey as arefusal to obey. Mgt has shown no inclination on the part of the grievant to refuse to obey or towillfully disregard orders. Since mgt was not there when the grievant scanned her MSP label they haveno proof that she “refused” to obey.Another issue would be the unseemliness of mgt being informed by the grievant that she had aproblem with her scanner and then they do a PDI for an alleged missed MSP scan. This smacks ofemployer intimidation and there is no place for this type of behavior in the USPS.Mgt also continues to make the argument that the grievant missed MSP scans after theday she was alleged to have missed it on April 03. Once again they are simply relying on MSP data tomake this assertion, which the grievant denies, and since none of these alleged missed MSP scans wereused in the determination to issue this LOW they should not be used in the determination to expunge it.We would also argue that there was no cost to the USPS for any alleged missed scan. Mgtargues that there is the cost of having to discipline and correct these alleged deficiencies but that issimply their choice. They made the choice to discipline for a minor infraction that they couldnt evenprove happened. If mgt had simply used reason and common sense then there would have been no extracost whatsoever. Also, since mgt never tried to correct the alleged deficiencies and simply went straightto discipline there was even less cost than there would have been if mgt had done things right.For all of the above reasons, the Union asks that the LOW be expunged from the grievantsOPF, that mgt pay $25 per day to the Union for each day past the 24 hours they should have providedthe Union with information, and that mgt cease and desist in applying a 99% work standard forscanning MSP labels to their carriers.Jason YoderSteward, NALC Branch 127Jefferson City, Missouri