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Arbitration on a WOO grievance by Arbitrator Simon in St. Charles, Mo.

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  1. 1. ‘ REGULAR ARBiTRATION In the Matter of Arbitration ) ) between ) Grievant: Class Action ) UNITED STATES POSTAL SERVICE ) Post Office: St. Charles, MO ) and ) USPS Case No: JO6N-4J-C 11335738 ) NATIONAL ASSOCIATION OF ) NALC Case No: JBO12 LETTER CARRIERS, AFL-CIO ) DRT No: 05-21258 1 BEFORE: Barry E. Simon, Arbitrator APPEARANCES: For the U. S. Postal Service: Cassandra Walker For the Union: John McLaughlin Place ofHearing: Post Office, St. Charles, MO Date of Hearing: March 6, 2012 AWARD: The Service violated the National Agreement by requiring non-ODL carriers to work overtime when there were ODL carriers available. The Service is directed to com pensate the ODL carriers for a total of 6.03 hours in a manner to be determined by the Union. Date of Award: May 7, 2012 GREAT LAKES AREA REGULAR PANEL 2 /.
  2. 2. Usps Case No. JO6N-4J-C I 1335738 DRTNo 05 212581 Grievant: Class Action Page 2Background: The facts in this case are, for the most part, undisputed. On Saturday, June 4, 201 1 it was ,necessary to work letter carriers on overtime at the St. Charles Main Post Office. At total of 1 3 49hours of overtime was worked that day by the five carriers who were regularly assigned to work onthat Saturday and were on the overtime desired list (ODL). Ofthis total, 238 hours were penaltyovertime. In addition, nine carriers who were working that day worked a total of 6.03 hours ofovertime, although they were not on the ODL. Two letter carriers who were on the ODL, but notscheduled to work on Saturday, were not called for overtime work that day. Of the ODL carrierswho worked overtime, not all were utilized up to the maximum of ten or twelve hours. It is also undisputed that management had established a Window of Operation (WOO) forthe Main Post Office at St. Charles that required all letter carriers to return from their street dutiesby 6: 10 pm. This time requirement allowed for twenty minutes to prepare all collected mail to beprocessed in time to make the last Dispatch ofValue, which was scheduled for 6:30 pm. The Union filed the instant grievance on behalf of the letter carriers who were not on theODL, but were required to work overtime, as well as the carriers who were on the ODL and couldhave worked the overtime hours, The grievance was denied by the Service and was then progressedthrough the grievance procedure in accordance with the provisions ofthe National Agreement. Theparties being unable to reach resolution, the matter was submitted to arbitration before the under-signed Arbitrator. In lieu ofclosing arguments, the parties submitted post-hearing briefs which werereceived by the Arbitrator on April 9, 2012, at which time the record was closed.Issue Presented: Was there a violation of the National Agreement including, but not limited to, Article 8regarding the use of non-ODL carriers for overtime work in lieu of available ODE carriers? If so,what is the appropriate remedy?
  3. 3. tJS1S Case No. JO6N-4J-C 1 1335738 DR1 No 05 212581 Grievant Class Action Page 3Position ofthc tJnion: The Union asserts the reason given by management for not fully utilizing the ODE carrierswas the Window ofOperation (WOO). The Union does not challenge the Service’s right to establisha WOO, but argues that the WOO may not be used to violate the National Agreement. The Union insists that Articles 85D and 85G require the Serv ice to fully utilize ODL .carriers before requiring non-ODL carriers to work overtime. It refers to the JCA.M explanation ofArticle 8.5.D, which states: One purpose ofthe Overtime Desired List is to excuse full-time carriers not wishing to work overtime from having to work overtime. Before requiring a non- ODL carrier to work overtime on a nonscheduled day or offhis/her own assignment on a regularly scheduled day, management must seek to use a carrier from the ODL, even if the ODL carrier would be working penalty overtime. This provision, says the Union, indicates the importance the parties placed on protecting non-ODL carrier from being forced to work overtime. It points to the testimony ofthe non-ODL carriersas to their reasons for not placing themselves on the ODL, arguing that the harm done by the Serviceby restricting their ability to lead their lives as they wish has been cumulative and irreparable. The Union submits that management has failed to meet its obligation to schedule carriers intovacant routes several days in advance, as stated in Section 126 of Handbook M-39. The Uniondenies there were any unscheduled absences on this date, noting that the absence of the one em-ployee identified by management had been scheduled at least as early as May 25, 201 1 It explained .that this employee had a long-term illness pre-dating June 4. The Union argues that the ODL carriers could have worked the overtime within the WOO.It says either or both of the non-scheduled carriers could have been called in to work, or thescheduled carriers could have been required to work additional hours, This could have beenaccomplished, says the Union, by asking carriers to waive their lunch period or having them reportfor work 30 minutes early. Furthermore, the Union avers the station is understaffed by as many asseven carriers. With 38 routes and one auxiliary in the station, the Union notes this amounts to an18% shortage of staff.
  4. 4. Usps Case No. JO6N-4J-C I 1335738 DRTNo 05212581 Grievant: Class Action Page 4 The Union points out that there have been several grievance settlements at this facility whennon-ODL carriers were required to work overtime. In addition to monetary remedies, it saysmanagement has agreed to cease and desist from this practice. It cites the B Team decision in agrievance arising on March 30, 20 1 1 stating as follows: , The information in the file lends its support to the union’s contentions that management, th ough well within their rights to establish a WOO, failed to meet their . obligation to adequately plan in advance so as to meet the requirements ofthe WOO and protect the rights of its employees under Article 85.G. the fact that management needed to draft (12) non-OTDL carriers on the day in question, would also lend support to the unions argument that the WOO is dysfunctional in its current form. Concluding that the Service has violated the Agreement, as well as the cease and desist ordersofprior grievance settlements, the Union asks that the grievance be sustained. As a remedy, it asksthe Arbitrator to direct that both the ODL carriers be made whole by being paid up to 1 2 hours fortime lost or worked by non-ODL carriers. It also asks that the non-ODL carriers who were draftedfor overtime be made whole by being paid an additional 50% premium for the hours they workedon June 4, 201 1 Finally, the Union asks that the Service be directed to cease and desist all viola- .tions and abide by Article 8, Sections 8.5.C2 and 8.5G. In support ofits position, the Union citesthe following Awards: BO1N-4B-C 06072667 Arbitrator Cenci EO1N-4E-C 06042723 Arbitrator Dilts EO1N-4E-C 061 75483 Arbitrator Dilts EO1N-4E-C 06260805 Arbitrator Dilts JO 1 N-4J-C 09291811 Arbitrator Dilts BO1N-4B-C 06079858 Arbitrator Deinhardt CO6N-4C-C 09190271 Arbitrator Wallace-Curry AO6N-4A-C 08305269) AO6N-4A-C 08305275) Arbitrator Rosen
  5. 5. Usps Case No. JQ6N-4J-C 11335738 DRTNo 05 212581 Grievant: Class Action Page 5Position of the Service: The Service argues the Union has failed to meet its burden ofproofby establishing a primafade case. It cites the testimony ofPamela Davis, who was the Officer-in-Charge ofthe St. CharlesPost Office at the time, that many ofthe carrier routes that day did not have sufficient mail volume.It avers that St. Charles, as the rest ofthe country, has been experiencing an ongoing decline in mailvolume, and a resultant decline in revenue. According to the Service, Davis had identified multiplehours of undertime, which explains why she did not schedule volunteers to work on their non-scheduled day. Given the fact that there are fewer deliveries on Saturdays due to businesses beingclosed, the Service contends this was not an unusual situation. The Service states that Transitional Employees and ODL carriers were assigned overtime upto the WOO before it drafted non-ODL carriers for overtime work. It insists that had the ODLcarriers been assigned overtime up to their maximum, they would have worked beyond the WOOand the Dispatch of Value would have been missed. The Service points out that full-time carriers are guaranteed eight hours ofwork or pay in lieuof when scheduled to work, Because the non-ODL carriers worked a total of 6.03 hours on otherthan their own routes, the Service contends the Union is advocating inefficiency by asking that it berequired to use ODL carriers on their non-scheduled days. The Service concludes it had a right to schedule non-ODL carriers to perform overtime workunder the National Agreement. It cites Article 8.5.D, stating “Ifthe voluntary “Overtime Desired”list does not provide sufficient qualified people, qualified full-time regular employees not on the listmay be required to work overtime on a rotating basis. . . .“ Denying that it violated the Agreement,the Service asks that the grievance be denied. In support of its position, the Service cites thefollowing Awards: B1ON-4B-C 05182951) BO1N-4B-C 05183011) Arbitrator LaLonde AO1N-4A-C 06061330 Arbitrator Imhoff H4C-NA-C 30 Arbitrator Mittenthal KO1N-4K-C 06201761) KO lN-4K-C 06201784) KO1N-4K-C 06201804) Arbitrator Lurie
  6. 6. Usps Case No. JO6N-4J-C 1 1335738 DRTNo. 05-21258! Grievant: Class Action Page 6 118N-5B-C 1 7682 Arbitrator Aaron AOl N-4A-C 06040079 Arbitrator Deinhardt JO6N -4J-C 1 03 05 73 0 Arbitrator SimonDiscussion: The assignment of overtime has long been a contentious issue between labor and manage-ment in all industries throughout this country. There have always been employees whose goal is tomaximize their income by seeking as much overtime work as possible. At the same time, there havealways been employees willing to forego additional compensation in return for more freedom tospend their time away from work. Conflicts arise, as it has in this case, when those seeking moreovertime are deprived of work opportunities because those who do not want additional work hoursare required to perform overtime. One group claims they are economically harmed while the otherasserts a more intangible loss. The Union and the Postal Service have approached this dichotomy by establishing, under theNational Agreement, a means for employees to express their preference. In an ideal world, onlythose employees who have placed themselves on the Overtime Desired List will be called forovertime work. Those who have not would be free to make commitments for activities outside oftheir regular work hours. Ifonly the world worked so perfectly. ODL carriers might be unavailableor already scheduled to work their maximum hours. The parties have agreed, though, that whenODL carriers are available for overtime work, they are to be given preference for such work overemployees who are not on the ODL. Article 8.5.D ofthe National Agreement states: Ifthe voluntary “Overtime Desired” list does not provide sufficient qualified people, qualified full-time regular employees not on the list may be required to work over- time on a rotating basis with the first opportunity assigned to the junior employee. In explaining this provision, the USPS-NALC Joint Contract Administration Manual (JCAM2009) states as follows: Mandatory Overtime. One purpose ofthe Overtime Desired List is to excuse full- time carriers not wishing to work overtime from having to work overtime. Before requiring a non-ODL carrier to work overtime on a non-scheduled day or off his/her own assignment on a regularly scheduled day, management must seek to use a carrier
  7. 7. Usps Case No. JO6N-4J-C 1 1335738 DRT No. 05-212581 Grievant: Class Action Page 7 from the ODL, even if the ODL carrier would be working penalty overtime. How- ever, if the Overtime Desired List does not provide sufficient qualified full-time regulars for required overtime, Article 8 5 .D permits management to move offthe list . and require non-ODL carriers to work overtime on a rotating basis starting with the junior employee. This rotation begins with the junior employee at the beginning of each calendar quarter. Absent an LMOU provision to the contrary, employees who are absent on a regularly scheduled day (e.g. sick leave or annual leave) when it is necessary to use non-ODL employees on overtime will be passed over in the rotation until the next time their name comes up in the regular rotation. Management may seek non-ODL volunteers rather than selecting non-volunteers on the basis ofjuniority. Normally, carriers not on the Overtime Desired List may not grieve the fact that they were not selected to work overtime. The provisions of Article 8.5.D do not apply in the case of full-time letter carriers working on their own assignment on a regularly scheduled day. That situation is governed by Article 8.5.C.2.d as amended by the letter carrier paragraph above. Some arbitrators have recognized that the Union has established a prima facie case byshowing, as it has here, that non-ODL carriers were required to work overtime while ODL carrierswere available. For example, in Case No. BOJN-4B-C 06072667, Arbitrator Eileen A. Cenci wrote: . While the burden ofproofis on the Union to establish a contract violation . . as in any contract case, once it has done so, the burden shifts to the Postal Service to prove that its decision to schedule non-ODTL [sic] carriers was based upon opera- tional necessity (Campagna, #C05 187029). In this case, the Union has established a prima facie case by proving that three carriers who were not on the OTDL were required to work overtime on February 6, 2006 even though there were other carriers in the same office who were on the OTDL and had not worked twelve hours on the day in question or sixty hours for the week. In the absence of the new evidence and argument that was excluded, the Postal Service has not shown an operational need to assign overtime to carriers who were not on the OTDL in order to efficiently meet delivery goals. The Union has therefore met its burden of proof and established a violation of the National Agreement. Other arbitrators have held the Union to a higher burden of proof. Arbitrator Jacqueline A.Imhoff, in Case No. AOJN-4A-C 06061330, summarized some of those decisions, writing: Arbitrators on the national level whose opinions are determined to be precedent setting, have held that meeting a window ofoperations justified simultane
  8. 8. usps Case No. JO6N-4J-C 1 1335738 DRTNo. 05-212581 Grievant: Class Action Page 8 ous scheduling ofOTDL and non OTDL carriers before the OTDL carriers have been maxirnliLd [Arhitiatot Richud Mittcnthal 1114(—NA—C3() (1991 ) Management submitted several awards in which the arbitrators concurred that it is reasonable for the Postal Service to meet the needs ofits customers by establish- ing a window ofoperations. They have been in agreement that, in order to maintain the integrity ol that window there arc times when Management is justified in assigning overtime simultaneously to 0 WI and non OTDL earners The arbitrators in concurrence are: Linda Robins Franklin [394N-4B-C 99182158, (July 9, 200 [cicl)1 Sherrie Rose Talmadgc [BOl N-4B-C 0223 1446 (May I 4, 2000)], Roger Maher [BO1N-43-C D2247724 (February 1, 2005)j; Jo Ann Nixon [GOIN-4G-C 0321 8936 (September 29, 2004)1; Jonathan Klein [COIN-4C-C 03200698 (July 28, 2005)j, John Dorsey [BO1N-4B-C 03 1 20985 (August 23, 2004)], and Herbert Marx, Jr. [BO1N-4B-C 05064012 (September 7, 2005)). In the Marx award, the arbitrator established the burdens ofproofrequired of both parties. He relied on an award by Arbitrator Lancaster [BO TN-4B-C 03186887 (June 3, 2004)] in which Arbitrator Lancaster held: The Point is that the concept of “operational windows” does in fact exist. In cases where management presents evidence and/or argument of the legitimate existence of a “window” the Union must do more than simply point to the maximum outlined in Article 85.G ofthe Agreement. Likewise, management must be fully prepared to refute argument and/or evidence submitted by the NALC with intent to diminish the legitimacy of management’ s claims. Marx concluded that the burden of proof is required of both parties. He stated that the burden could not be met by the Union simply stating the number ofhours that the OTDL employees did not work on the days at issue. That does not prove there was a violation of the Agreement. He went on to say: “The Union must also address whether rescheduling of ODL employees (for example, earlier starting times) would have been an effective means to accomplish the day’ s delivery and collection tasks. To the degree the Union has done so, the Postal Service is then re quired to justify the need and extent of non-ODL employees.” The instant case is not simply one involving the simultaneous scheduling of ODL and nonODL employees in order to meet the WOO. What distinguishes this case is the fact that two ODL
  9. 9. Usps Case No. JO6N-4J-C 11335738 DRTNo. 05-212581 Grievant: Class Action Page 9employees, J. A. Lynch and J. T. James, were on their non-scheduled day and, according to theUnion, were not offered the overtime work opportunities. Davis did not know ifeither ofthem wascalled or available. Although she testified that they usually did not get non-scheduled ODLemployees to come in, the Arbitrator must assume they were available in the absence of evidenceto the contrary. On this day, there were vacant routes due to the facility not being fully staffed. In addition,there was one vacancy caused by an employee on sick leave. Davis testified that this was anunscheduled absence. The Union, however, alleges, and the Service does not refute, that thisemployee, Carrier McCullough, had been offwork for some time due to having had knee surgery.The Arbitrator does not find this absence to be truly unscheduled. There is no evidence ofany otheremployees calling in to be absent that day. Based upon the record before him, the Arbitrator finds that the Service could have avoidedusing non-ODL employees for overtime work had either of the non-scheduled ODL carriers beencalled in, In light ofthe total overtime worked that day, the Arbitrator does not find that using eitherLynch or James would have resulted in undertime for any ofthe carriers, considering that there werestill several open routes to which they could pivot. There is no evidence to the contrary. Doing sowould have resulted in approximately two hours less overtime to the ODL carriers who wereregularly assigned that day. The Arbitrator concludes that the Service was in violation ofthe National Agreement whenit forced non-ODL employees to work overtime on June 4, 201 1 when there were ODL employeesavailable to work. The Service shall be required to compensate the ODL employees for the 6.03hours oflost overtime opportunity in a manner to be determined by the Union. Consistent with thefindings ofnumerous other arbitrators, it is found that the non-ODL carriers who received paymentfor their overtime service are not entitled to any further remedy. In Case No. EOJN-4E-C 06260805,Arbitrator David A. Dilts cited the decision of Arbitrator Linda DiLeone Klein in Case No. 194N-41-C 97122042 holding that the overtime pay received by the non-ODL carriers was all that was dueas a remedy. The Arbitrator also agrees with the decision of Arbitrator Cenci, supra, that an orderto cease and desist is not appropriate. She wrote:
  10. 10. Usps Case No. JO6W4J-C I 1335738 DRTNo 05 212581 Grievant: Class Action Page 10 there may be circumstances in which the Service would have a legitimate opera- tional need to simultaneously schedule OTDL and non-OTDL carriers for overtime, even though such circumstances were not proved in this case. Each case must therefore be evaluated on its own facts to determine whether the circumstances that would justify such simultaneous scheduling existed.Award: The Statement of Issue is answered in the affirmative and the grievance is sustained. TheService is directed to compensate the ODL carriers for a total of 6O3 hours in a manner to bedetermined by the Union. The Arbitrator shall retainjurisdiction for sixty days from the date ofthisAward solely to resolve any disputes related to the remedy granted. No further reliefis granted underthis Award. a . i on, rbitratorDated May 7 2012Arlington Heights, Illinois