Grievance Phrases II
The following is an accumulation of Item #15 Issues Statements and Item 17. UNION’S full, detailed statement of disputed facts that have been compiled over several years by several Union Advocates. These are intended to help each Steward and/or Advocate present a clear concise picture of the nature of the dispute. These should not be relied on solely to develop a grievance file. Each case has unique details that need to be clearly presented.
It is a fundamental rule of grievance handling that a case file should be developed as if someone unfamiliar with the Postal Service and NALC Contract will be deciding the case.
ISSUE STATEMENTS:
DPS & GO
Did the USPS violate Articles 5, 8, 14, 34, 41, and the joint Statement on Violence and Behavior in the Workplace, on 3/3/06, with the implementation of DPS & Go (case only First Class and grab your DPS & Go)? If yes, what is the remedy?
Article 8
Did Management violate Article 8.8 of the National Agreement when they solicited a Carrier to work her non scheduled day off, when they knew she would not be available to work a full eight (8) hours? If yes, what is the remedy?
Did Management violate Article 8.5.C.2.b of the National Agreement when they did not make every effort to equitably distribute the overtime hours among those on the overtime desired list during Quarter 2 of 2003? If yes, what is the appropriate remedy?
Whether management violated Article 8 of the National Agreement when they worked non-overtime desired list carrier’s overtime before seeking casuals and part time flexible employees to provide auxiliary assistance? If yes, what is the appropriate remedy?
M-39 271.G
Did Management violate Article 19 of the National Agreement by failing to adjust the Grievants route following a Special Mail Count and Route Inspection? If yes, what is the remedy?
Did Management violate Article 19 of the National Agreement when the adjusted routes without special inspections? If yes, what is the appropriate remedy?
Opting
Did Management violate the provision of the 2/22/82 Memorandum of Understanding by denying the grievant a temporary bid on Route 717? If yes, what is the remedy?
Did management violate Article 41.2.B.5 of the National Agreement by forcing the grievant to work off his opt duty assignment? If yes, what is the remedy?
Route Reversion
Did Management violate Article 7.3 of the National Agreement by reverting position R78-1? If yes, what is the remedy?
Bumped from Opt
Did Management violate Article 41.2.B.5 of the National Agreement by forcing the grievant to work off his opt duty assignment? If yes, what is the remedy?
Medical Documentation
Did Management violate their own provisions in ELM 513.36 by requiring the grievant to supply medical documentation? If yes, what is the remedy?
Non ODL in Lieu of ODL
Did Management violated Article 8.5 of the National Agreement when they worked non-overtime desired list carriers overtime when overtime desired list carriers were available to work? If yes, what is the remedy?
Denied Leave
Did Management violate the provisions of the Local Memorandum of Understanding (Item 12, Sect. 3) when they denied the grievant Annual Leave for August 3, 2002? If yes, what is the appropriate remedy?
Letter of Demand
Did management violate Article 28 of the National Agreement when they issued the grievant a Letter of Demand dated April 30, 2002, in the amount of $2808.59? If yes, what is the appropriate remedy?
FMLA
Whether management violated the provisions of CFR 825.113 defining “son” for the purpose of an employee qualifying to take FMLA leave?
Steward Time
Did Management violate Article 17 of the National Agreement when it denied Shop Steward time to process grievance? If yes, what is the appropriate remedy?
Joint Statement
Did Management violate Article 19 of the National Agreement (Joint Statement on Violence and Behavior in the Workplace) on 9/10/07? If yes, what is the remedy?
Management Rights
Did Management violate Article 1.6 of the National Agreement by doing craft work on 10/16/06 (collection tour)? If yes, what is the remedy?
Discipline
Did Management have Just Cause in accordance with Article 16 of the National Agreement to issue the grievant a Letter of Warning, dated 1/2/08? If not, what is the remedy?
PHRASES TO BE USED IN GRIEVANCE FORMS
DISCIPLINE
17. UNION’S full, detailed statement of disputed facts (attachments as necessary)
1. Management has no Just Cause to issue the Notice of Discipline. Just Cause as outlined in the JCAM includes certain “tests”:
a. Is there a rule? If so, was the employee aware of the rule? Was the employee forewarned of the disciplinary consequences for failure to follow the rule? It is not enough to say, “Well, everybody knows that rule,” or, “We posted that rule ten years ago.” You may have to prove that the employee should have known of the rule. Certain standards of conduct are normally expected in the industrial environment and it is assumed by arbitrators that employees should be aware of these standards. For example, an employee charged with intoxication on duty, fighting on duty, pilferage, sabotage, insubordination, etc., may be generally assumed to have understood that these offenses are neither condoned nor acceptable, even though management may not have issued specific regulations to that effect.
b. Is the rule a reasonable rule? Management must make sure rules are reasonable, based on the overall objective of safe and efficient work performance. Management’s rules should be reasonably related to business efficiency, safe operation of our business, and the performance we might expect of the employee.
c. Is the rule consistently and equitably enforced? A rule must be applied fairly and without discrimination. Consistent and equitable enforcement is a critical factor. Consistently overlooking employee infractions and then disciplining without warning is improper. If employees are consistently allowed to smoke in areas designated as No Smoking areas, it is not appropriate suddenly to start disciplining them for this violation. In such cases, management loses its right to discipline for that infraction, in effect, unless it first puts employees (and the unions) on notice of its intent to enforce that regulation again. Singling out employees for discipline is usually improper. If several similarly situated employees commit an offense, it would not be equitable to discipline only one.
d. Was a thorough investigation completed? Before administering the discipline, management must make an investigation to determine whether the employee committed the offense. Management must ensure that its investigation is thorough and objective. This is the employee’s day in court privilege. Employees have the right to know with reasonable detail what the charges are and to be given a reasonable opportunity to defend themselves before the discipline is initiated.
e. Was the severity of the discipline reasonably related to the infraction itself and in line with that usually administered, as well as to the seriousness of the employee’s past record? The following is an example of what arbitrators may consider an inequitable discipline: If an installation consistently issues five-day suspensions for a particular offense, it would be extremely difficult to justify why an employee with a past record similar to that of other disciplined employees was issued a thirty-day suspension for the same offense. There is no precise definition of what establishes a good, fair, or bad record. Reasonable judgment must be used. An employee’s record of previous offenses may never be used to establish guilt in a case you presently have under consideration, but it may be used to determine the appropriate disciplinary penalty.
f. Was the disciplinary action taken in a timely manner? Disciplinary actions should be taken as promptly as possible after the offense has been committed.
g. Corrective Rather than Punitive The requirement that discipline be “corrective” rather than “punitive” is an essential element of the “just cause” principle. In short, it means that for most offenses management must issue discipline in a “progressive” fashion, issuing lesser discipline (e.g., a letter of warning) for a first offense and a pattern of increasingly severe discipline for succeeding offenses (e.g., short suspension, long suspension, discharge). The basis of this principle of “corrective” or “progressive” discipline is that it is issued for the purpose of correcting or improving employee behavior and not as punishment or retribution.
MITIGATING CIRCUMSTANCES
Management failed to consider any mitigating circumstances. Accountable are not brought to the Carrier case, grievant had to go to the other end of building to get accountable and then walked out the far door. Accountable mail seldom brought to Carrier case.
OTHER…
Too Harsh
Even if the grievant had committed the infractions cited, they would not warrant the severity of discipline imposed
No harm
The Grievants actions are not inconsistent with Part 665.13 of the ELM. Management has shown no proof that the grievant was not discharging her duties conscientiously and effectively. Management has not shown any impairment or harm to the efficiency of the mail or the Postal Service.
Not a thorough investigation – Scanning Bar Codes
Investigative Interview conducted on the 1/17/07, Management never advised the grievant that he was missing hot case scan.
Grievant had problem at 101 Aspen. He scanned everyday. First became aware on 1/17/07. Grievant took picture when he scanned. He asked Management to come out to verify that he was scanning label. No scanning problems after Management put in new scan labels
When the barcode is wet or damp, it will not scan.
On 1/3/07, when grievant came off the street, he wrote a note that scan point at 8039 Garden was missing. Card said that it was located at office. He verbally told his Supervisor. The next morning at 8:22 A.M. He asked for a new label. Management showed the grievant this note at the Investigative Interview.
The scan point at 101 Dogwood was placed inside a mailbox, where the grievant was unable to scan it. It was placed inside a box, well above the Grievants head. It was removed and placed on a alert card. The grievant informed Management that he was unable to scan it. The next morning the grievant asked his Supervisor to order a new label. The grievant tried to take a picture of this label, but was unable.
On 1/12/07, a customer at 8039 Garden #101 asked the grievant that no more stickers be placed in her mailbox. The grievant was not aware of any stickers in her mailbox. The grievant informed Acting Supervisor Wray of this conversation on 1/12/07. The scan label in mailbox #101 is supposed to be at the office.
On 2/12/07, The NALC Steward interviewed the customer at 8039 Garden #102 (Sister of #101). She Stated the Supervisor asked her to sign a statement that there was a label in box #101(she collects the mail daily for her disabled Sister). She refused and stated that the Postal Supervisor was very rude to her. She also stated that he was driving on the wrong side of the Blvd. and was speeding.
At 101 Elmwood, there are 2 barcode labels: One inside a mailbox and one on the outside.
The grievant does not purposely remove barcode labels. 101 Heathwood and 9015 Park Blvd., barcode labels are still there. Grievant still scans them.
Management changed the Grievants label while he was on annual leave. Labels are not universal, some on the inside of boxes and some on the outside.
On 1/12/07, the grievant asked Management to come out to his route, talked on the phone with his Supervisor, who talked to the Manager, who said they would be out tomorrow. The next day, they still did not come out. Trying to find out the problem, but Management did not come out.
Since day one, the Acting Supervisor does not like the grievant. The Grievant sates he had on more that one occasion tried to assist the 204B supervisor as to the contractual rules for City Letter Carriers. The grievant is a former Shop Steward. 204B says no, refer to page 14. After the first week he remained irritated with the grievant.
Unsatisfactory Performance:
The charge of Unsatisfactory Performance does not meet the provisions of Part 375.2 of the ELM, which identifies "Unsatisfactory Performance" as "a level of performance repeatedly or consistently below the minimum requirements. One single incident cannot be considered "repeatedly" or "consistently". The charge “Unsatisfactory Performance” is overly broad and obscures in each instance the proximate causes of the respective disciplines. Virtually every type of infraction within the Postal Service is always related to Unsatisfactory Performance or Failure to Follow Instructions. In just about every case, Management throws the same “mud at the wall” hoping some of it will stick.
Punitive
The action is punitive in nature rather than corrective and is without just cause.
Not progressive
Management has failed to use progressive discipline as outlined in the National Agreement. "Progressive Discipline" is normally: (1) Article 16 Discussion; (2) Letter of Warning; (3) 7 Calendar Day Suspension; (4) 14 Calendar day Suspension; and (5) Notice of Removal. The 278 E clearly shows that the grievant has no previous Active Disciplinary Act (re: Discussion).
The Notice of Seven Day Suspension cited in the instant case has not been resolved, and apparently remains in the grievance process. Whether the case will be arbitrated or not, and how it will be concluded, is unclear at present. It is not proper at this point to allow the instant discipline to be built upon another instance of discipline, which may or may not stand up in the final analysis. The Letter of Warning is not a proper basis for elevating the level of the instant discipline, even without any consideration to the question of the relatedness of the two cases. Therefore, the instant discipline must be adjudged based upon whether or not the facts provided here warrant a Fourteen (14) day calendar suspension.
Corrective, fully investigate:
Management has failed to follow their own provisions in Part 115.1, 115.2, 115.3, and 115.4 of the M-39, which states in part that:
Part 115. Discipline. Part 115.1 Basic Discipline. In the administration of discipline, a basic principle must be that discipline should be corrective in nature, rather than punitive. No employee may be disciplined or discharged except for just cause. The delivery Manager must make every effort to correct a situation before resorting to disciplinary measures.
Part 115.2 Using People Effectively. Managers can accomplish their mission only through the effective use of people. How successful a manager is in working with people will, to a great measure, determine whether or not the goals of the Postal Service are attained. Getting the job done through people is not an easy task, and certain basic things are required, such as: a.) Let the employee know what is expected of him or her; b.) Know fully if the employee is not attaining expectations Don't guess make certain with documented evidence; c.) Let the employee explain his or her problem-Listen! If given a chance, the employee will tell you the problem. Draw it out from the employee, if needed, but get the whole story.
Part 115.3 Obligation to Employees. When problems arise, Manager must recognize that he/she has an obligation to employees and to the Postal Service to look to themselves, as well as, to the employee to: a.) Find out who, what, when, where and why. b.) Make absolutely sure you have all the facts. c.) The Manager has the responsibility to resolve as many problems as possible before they become grievances. d.) If the employee's stand has merit, admit it and correct the situation. You are the Manager; you must make decisions; don't pass this responsibility on to someone else
Part 115.4 Maintain Mutual Respect Atmosphere. The National Agreement sets out the basic rules and rights governing Management and employees in their dealings with each other but it is the front line Manager who controls Management's attempt to maintain an atmosphere between employer and employee which assures mutual respect for each other's rights and responsibilities..
Labor Relations Representative G. E. Keegan, in a Post Brief to Arbitration Case H94N-4H-D 96055456 indicates that a "discussion" is the first step of Progressive Discipline The 278 E clearly shows that the grievant has no previous Active Disciplinary Act (re:Discussion)
Procedural arguments
Due process has being denied the grievant and the union when Supervisor Teri Brown stated that she was not allowed to resolve any grievances. She was required by Manager Diane Goldstein to send them to Formal Step A, thus violating the provisions of Article 15 of the National Agreement.
Management has violated Step B Decision H98N-4H-C02161785 and grievance resolve #1477-368-99-96 that clearly states that Management have available, at the station level, at the time a Notice of Discipline is issued, a copy of the 278-E package.
The discipline was not timely issued. The alleged incident occurred on 12/5/07 and an investigative interview was conducted on 12/21/07 (over 2 weeks later). On or about 1/5/08, the grievant was issued a Letter of Warning, dated 1/2/08. When management discovers a letter carrier’s misconduct, it must initiate discipline in a timely manner. If management does not do so, it waives whatever rights it may have to impose discipline. Thirty (30) days is not timely.
Due process has being denied the grievant and the union when the Supervisor stated that she was not allowed to resolve any grievances. She was required by the Manager to send them to Formal Step A, thus violating the provisions of Article 15 of the National Agreement.
The Supervisor stated that “he did not agree with some of their policies for the Notice of Seven (7) Day Suspension, but he had to give it to me anyway”. This clearly shows that discipline was ordered by higher management, rather than by the Grievants immediate supervisor.
Management is using Safety and Performance in a weak effort to support just cause for a performance issue. Safety and Performance are two separate issues and should not be considered together.
In this instant case, the penalty simply does not fit the crime.
The grievant was emotionally impaired.
Management has violated Step 4 Decision #A8-E-0471/E8C2FC-2033 which clearly states that discussions are not to made a part of a control record system to which other individuals have access, nor should a written notation be passed from one supervisor to another. The Supervisor references an official discussion from her previous supervisor.
The Supervisor allegedly gave the Grievant an official discussion on August 31, 2007 and cited a absence of 8/30/07 on the Letter of Warning, which is Double Jeopardy, thus making the Letter of Warning Improper.
Cited discipline not yet adjudicated
The Letter of Warning cited in the discipline (EXPANDING STREET TIME) is not a proper basis for elevating the level of the instant discipline, even without consideration to the questions of the relatedness of the case. Therefore, the instant discipline must be adjudged based upon whether or not the facts provided here warrant a Seven (7) Day Suspension. The 10/18/02 Letter of Warning has not been adjudicated and therefore should not have been cited.
The Letter of Warning cited in the instant case has not been resolved, and apparently remains in the grievance process. Whether the case will be arbitrated or not, and how it will be concluded, is unclear at present. It is not proper at this point to allow the instant discipline to be built upon another instance of discipline, which may or may not stand up in the final analysis. That other Letter of Warning is not a proper basis for elevating the level of the instant discipline, even without any consideration to the question of the relatedness of the two cases. Therefore, the instant discipline must be adjudged based upon whether or not the facts provided here warrant a seven (7) day calendar suspension.
Management by Intimidation
Although the Letter of Warning was issued and signed by the Supervisor, this action is the latest element in the Station Managers agenda to ignore contractual requirements as it pertains to union rights, and managing through bullying. The Manager has used these same techniques at the Gulfwinds Station as well as the Winter Park, Fl. Post Office where intervention was conducted regarding the Second Joint Statement and behavior in the Workplace. On 5/15/02, the Postmaster and NALC Br. 1477 agreed to Intervention due to the problems in the work environment at the Crossroads Station in an effort to reduce those problems. The manager is no longer the Station Manager at the Crossroads Station. The labor climate, now, is greatly improved.
On November 14, 2002, Branch 1477 petitioned the NALC National Business Agent and the USPS District Manager for an intervention process due to the Hostile work environment being created by the Largo Postmaster, Managers, and Supervisors. Much of this was reflected in the geometric increase of discipline in the Largo Post Office from a total of 29 for the year 2000, to 43 in 2001, to over 91 in 2002. Management seem to be going out of their way to look for anything, justifiable or not, to issue discipline. This discipline is just one more example of the disciplines without justification.
No Authority to Settle
Management’s grievance representative lacked authority to settle the grievance. In an effort to resolve this issue at the lowest possible level, the Union presented a resolution sheet to the Supervisor and encouraged her to accept the offer. The Union offered to reduce the Removal Notice to a Letter of Warning to be removed 8/1/04, provided that during the interim the grievant has no similar infractions and that it not to be cited in other discipline unless similar. After several minutes, the Supervisor left the room to consider this. She later returned and stated that it was not strong enough. The Union designee crossed out Letter of Warning and wrote in 7 Day Suspension. She then said that she needed time to consider. The parties agreed to extend the time limits for a decision until 8/20/03. Prior to meeting with her on 8/20/03, the Union had a Step A meeting with the Manager of Customer Service. During this meeting, The Union pulled a Step B remand decision his desk, and there was the resolution sheet that we offered the Informal A Supervisor. It was apparent the Manager is going to make the decision. This grievance had not yet been appealed. Immediately following this meeting, the Union met with the Supervisor at her desk, where she formally denied the grievance. The Union, then, formally withdrew the offer to reduce the removal Notice to a 7Day Suspension.
At the Informal Step A, Supervisor Hayden stated that she couldn’t resolve this grievance because there were several disciplinary actions cited in the Removal Notice. The Union explained that some of those cited should not have been cited. She further stated that, I know that you are going to win, but I can’t resolve it. She reviewed the interview that the Union conducted and stated that her responses were correct.
Safety Rule
Suncoast District and Cluster Safe Driving Rules for Postal Drives #13 states: You must turn off the engine when you exit the vehicle. If the vehicle will not be in your full view, remove ignition key and lock the vehicle. What rule did the grievant violate.
ATTENDANCE
Management failed to consider any mitigating circumstances.
All of the sick leave absences were for genuine illness.
Management approved all of the absences and not once did they require medical certification to substantiate the absence.
Management is attempting to deny the grievant his right under Article 10 of the National Agreement to use sick leave.
The absences from 9/28/07 and 9/29/07 should be considered as one (1) each, based on John Potter’s 9/2/97 letter which states in part that when an employee calls in requesting Sick Leave and is incapacitated for a duration which consist of consecutive days, it should be charged as one (1) absence.
The Suncoast District established a set number of absences (two) to be used to ensure that employee attendance records are being reviewed by their supervisor. The grievant is within that established number.
The discipline was not timely issued. The Grievants last absence was on 9/23/06. A Investigative Interview was conducted on 9/28/06. The grievant was issued a Notice of 14 Day Suspension, dated 10/11/06. Management waited until 11/29/06 to issue the Notice of 14 Day Suspension. When management discovers a letter carrier’s misconduct, it must initiate discipline in a timely manner. If management does not do so, it waives whatever rights it may have to impose discipline. Sixty Two (62) days is not timely.
Management has failed to use progressive discipline as outlined in the National Agreement and their own "Unsatisfactory Performance Plan", which is part of a 48 page document from the U.S.P.S. Southeast Area Office dated 3/17/94, subject: "Unsatisfactory Effort". The "Unsatisfactory Performance Plan" in this document provides that "Progressive Discipline" is normally: (1) Article 16 Discussion; (2) Letter of Warning; (3) 7 Calendar Day Suspension; (4) 14 Calendar day Suspension; and (5) Notice of Removal. Additionally, Suncoast District Labor Relations Representative G. E. Keegan, in a Post Brief to Arbitration Case H94N-4H-D 96055456 indicates that a "discussion" is the first step of Progressive Discipline.
The grievant has been denied due process. The basic objective of the grievance procedure is the achievement of sound and fair settlements. At the 10/31/02, Informal Step A meeting with the Supervisor, the Union offered to resolve this grievance by reducing the Letter of Warning to an Official Discussion on 1/16/02 provided the he has three (3) or less unscheduled absences in that time period. Management quickly accepted that offer. The Union informed the Supervisor that he was going back to his office to type up the resolves. Following the meeting, management went to the grievant and informed him that his grievance has been resolved. The Union also informed the grievant as such. Later that day, the Supervisor called the Union Hall and informed Executive Vice President Les Stroup, that after further review, he can not accept that offer because he was not aware of all the absences. It was the instant Supervisor who initially initiated the Letter of Warning. It has the appearance that this supervisor did not have the authority to resolve this grievance.
PART-TIME FLEXIBLE'S
Part-Time Flexible Letter Carriers may exercise their preference by use of their seniority for vacation scheduling and for available Full-Time Craft duty assignments of anticipated duration of five (5) days or more in the delivery unit to which they are assigned.
OVERTIME
Management has violated Article 8.5.C.2.A by not assigning the overtime to Carriers who are on the Overtime Desired List.
Management has violated the provisions of the December 20, 1988 National Memorandum of Understanding relative to Article 8 (Pages 162 and 163 of the National Agreement). Item 3 of this memorandum allows management to require a non-Overtime Desired List Carrier to work overtime on his/her own regular assignment on their regular scheduled workday, i.e. "Letter Carrier Paragraph", rather than assign that overtime to a Carrier on the Overtime Desired List, if the Overtime Desired List Carrier would be in a Penalty Overtime status. IT DOES NOT allow Management to require non-Overtime Desired List Carriers to work overtime on other assignments to avoid penalty pay for Carriers on the Overtime Desired List.
A memorandum of understanding signed December 20, 1998 explained the requirement to to seek to use auxiliary assistance before requiring a carrier not on the ODL or work assignment list to work overtime. Management must seek to use all of the following to provide auxiliary assistance:
· casuals
· part-time flexibles at the straight-time or regular overtime rate
· transitional employees at the straight-time or regular overtime rate
· available full-time regular employees such as unassigned or reserve regulars at the straight time rate
· full-time carriers from the overtime desired list at the regular overtime rate
A Cease and Desist was signed by the Supervisor, but Management refuses to comply. It was agreed to discontinue the practice of the Supervisor dispatching auxiliary bumps to the carriers on the street.
The Supervisor also states in the interview, she continually violates the National Agreement, even after a cease and desist order, because she does not have enough time in her day.
Management has implemented a 5:00 P.M. Window of Operation in an effort to circumvent Article 8 of the National Agreement. Central’s last dispatch is after 6:00 P.M. Management has violated the 5/28/85 Letter of Intent re: Work Assignment Overtime (Pages 164 and 165 of the National Agreement). Item A clearly provides that Work Assignment List Only applies to the overtime on a Carrier's regular work assignment on their regular scheduled workday.
PTR’S
PTR Carriers are hired for a specific job, with a regular schedule of work hours and non-scheduled day of less than 40 hours. They cannot sign the Overtime Desired List and should not be worked prior to Overtime Desired List volunteers.
Management is in violation of their own May 29, 1985 letter relative to management's rights and obligation in the utilization of Part-Time Regulars. Item number 13-A clearly states that: Expansion of hours: While a Part-Time Regular is hired for a fixed number of hours per week, their hours can be expanded in unusual, unpredictable and non-recurring situations. It is not intended that Part-Time Regulars would have their hours of work expanded in a predictable fashion on a recurring basis. Postal Managers must be on constant alert to avoid expanding Part-Time Regular hours of work contrary to their intended use.
Management has violated the provisions of Article 7.1.A.2, which requires that PTRs have regular schedules. This regular schedule consists of a 5 day week with a non-scheduled day. Management may not change the schedule or expand the PTR's hours (to include non-scheduled day) except for unpredictable, emergency situations. The events on the day in question were not unpredictable or an emergency. Management regularly works the PTRs out of their schedule and expands their hours to avoid overtime pay to Carriers on the Overtime Desired List.
Management is in violation of Pre-Arbitration Settlement numbers H-94N-4H-C 98006851 and H-94N-4H-C 98006852 which states in part that: Part-Time Regular Carriers are normally to be worked in the unit to which they are assigned except as provided in Article 12.5.D of the National Agreement. It is recognized that when there is not sufficient work, Carriers may on a daily basis, be excessed from the section in accordance with the National Agreement.
QUARTERLY OVERTIME
Management violated Article 8.5 by failing to make every effort to equitably distribute the overtime hours among those on the list.
Management has violated the 5/91 Memorandum on the application of Article 8, Section 5 relative to distribution and tracking of overtime hours and opportunities for those who have signed the list. Item #17 clearly states that the unit Supervisor will total the first fourteen (14) days listing the total number of opportunities afforded and hours worked under the column for “Sub Total for the Period”. The unit Supervisor will meet the Steward to review for postings for accuracy and to discuss any inequities noted at that time. The same procedure will be followed for the remained of the calendar quarter. The total of each calendar month will be carried over and becomes the first entry on the next month’s tracking chart.
Overtime opportunities were not tracked due to Management not using the overtime tracking legend at the bottom of the tracking chart. The Alternate Steward discussed this problem with the new Postmaster on May 19, 2006. A cease and desist order was issued June 8, 2006.
SIMULTANEOUS SCHEDULING
Article 8.5.C2 states: Only in the letter carrier craft, when during the quarter the need for overtime arises, employees with the necessary
skills having listed their names will be selected from the list. …
The Union contends that this language requires management To adequately staff its facilities to ensure that no full-time regular employees electing a Work Assignment Overtime Only list or those not electing to sign any Overtime Desired List designation is required to work overtime when sufficient Overtime Desired Employees are available to complete the work. In the instant case OTD several carriers were available within the limits listed in Article 8.5.F and G of the National Agreement.
F. … excluding December, no full-time regular employee will be required to work overtime on more than four (4) of the employee’s five (5) scheduled days in a service week or work over ten (10) hours on a regular scheduled day, over eight (8) hours on a non-scheduled day or over six (6) days in a service week.
G. Full-time employees not on the “Overtime Desired” list may be required to work overtime only if all available employees on the “Overtime Desired” list have worked up to twelve(12) hours in a day and sixty (60) hours in a service week. Employees on the “Overtime Desired” list:
1. may be required t work up to twelve hours in a day and sixty (60) hours in a service week (subject to payment of penalty overtime pay set forth in Section 4.D for contravention of Section 5.F); and
2. Excluding December, shall be limited to no more than twelve (12) hours of work in a day and no more that sixty (60) hours of work in a service week.
The language in Article 8 5.F and G was negotiated in the 1984 National Agreement. The contractual obligation has never changed.
The Union contends the Article 8.5.c.2d the USPS and the NALC agreed to the language is known as the “Letter Carrier Paragraph”: In the Letter Carrier Craft, where management determines that overtime or auxiliary assistance is needed on an employee’s route on one of the employee’s regularly scheduled days and the employee in not on the overtime desired list, the employer will seek to utilize auxiliary assistance when available, rather that requiring the employee to work mandatory overtime.
The J-CAM which is the governing handbook of the Article 15 Dispute Resolution Process discusses its implementation on page 8-14. The J-CAM affirms the Unions contention of improper simultaneous scheduling
–management can require full-time regular carriers not on the overtime desired list to work overtime on their own routes on a regularly scheduled day. Remember that this limited exception applies only when a full-time non-ODL letter carrier is required to work overtime on his/her own assignment on a regularly scheduled day.
The “Letter Carrier Paragraph” was reaffirmed in the 1988 Memorandum of Understanding. That memorandum included specific language on providing auxiliary assistance, simultaneous scheduling and staffing responsibilities. The Union contends permissible simultaneous scheduling exists when:
a) A non-ODL letter carrier working up to 10 hours on his or her own assignment on a regularly scheduled day as long as no ODL carrier was available to work at the regular overtime rate and
b) In cases where non-ODL carriers were working overtime on an assignment other than their own, or working a non-scheduled day as long as all ODL carriers were working up to 12 hours in a service day.
The 1984 Memorandum on Overtime states in part:
Recognizing excessive use of overtime is inconsistent with the best interests if postal employees and the Postal Service, over the years the parties have adopted changes to Article 8 with the intent to limit overtime, to avoid excessive mandatory overtime and to protect the interests of employees who do not wish to work overtime.
The Union contends the Overtime Desired List was created in part to eliminate the need to mandate those carriers that did not want to work overtime. In the creation of a goal such as the 5PM window of operations, management must staff to accomplish this task without violating the National Agreement. The Union contends that Managements claim that Article 3 of the National Agreement allows for their complete discretion when simultaneous scheduling overtime to non-overtime volunteers is erroneous. The JCAM states under Article 3.
While postal management has the right to “manage” the Postal Service, it must act in accordance with the applicable laws, regulations, contract provisions, arbitration awards, letters of agreement, and memoranda. Consequently, many of the management rights enumerated in Article 3 are limited by negotiated contract provisions…
Therefore, management may have the right to establish an operational goal of 5PM it cannot do so in violation of other contract provisions.
The Union contends proper staffing of the installation will alleviate the inappropriate simultaneous scheduling of non-ODL and ODL carriers.
a. The St. Petersburg DSSA staffing analysis for fiscal year 06 shows that St. Petersburg’s authorized compliment calls for a total of 505 Carrier Craft employees. At the time of the appeal of this grievance St. Petersburg employees 454 full Time Regular Carrier Craft Employees, 41 Part-Time Flexible, and 2 Part Time Regular carriers for a total of 497 Carrier Craft Employees. The supplemental work force (casuals) are to be released effective 6/30/06.Although the St.Petersburg staffing is close to projections in staffing, the DSSA additionally shows a 7.5% goal of overtime to work hours for FY 6. Currently the St. Petersburg installation is 14.4% year to date (YTD) and 15.05% for last week. The Union points to this fact in illustrating management’s obligation to proper staff its facilities to remain in compliance with the National Agreement.
EL312 Section 124 – The district manager of Human resources is responsible for …c) planning and conducting appropriate ongoing recruitment efforts to meet local needs. d) planning, opening, announcing, and publicizing examinations for recruitment to meet staffing needs of the district.
EL312 Section 211.1 Forecasting –The installation head is responsible for forecasting the recruitment requirements ion the installation in sufficient time to assure that there are qualified persons available for appointment…While the installation head is responsible for forecasting recruitment needs, local management from all organizational functions must work together in assessing how changing operational needs will affect recruitment needs. Therefore, if the Postal Service decides to make an operational change that requires all mail in a delivery unit to be delivered by 5 p.m.., the regulations clearly state that management must staff accordingly.
b. The Compliment Committee Guidelines list as a requirement when submitting requests to the area committee must include…Latest accounting period’s flash report…the impact of automation and other program impacts. 14.4% Overtime rates and Operational changes such as a “window” should have been considered when projecting the staffing needs for the installation. Double digit overtime rates nearly doubling the yearly goals do not justify improper simultaneous scheduling The Union concedes managements rights to establish operational goals while managing the Postal Service. The Union contends staffing is required to eliminate the violations on the National Agreement. The Suncoast staffing inadequacies is further compounded in a notice sent, effectively “freezing” all hiring in the district. The notice states in part: This is to advise that all hiring in F-1, F-2b and F-4 must cease immediately until further notice. Over time and workhour reduction efforts simply have not yield the savings sufficient to support our continual hiring in these areas. You will receive further communication from Terry upon his return. Understanding that you may have hiring commitments which must be honored. The attached document must be completed and returned to Bernis Owen of my staff no later than close of business Friday-June 16, 2006. Should you have any questions or concerns, please call me.
The Union includes the “Dispatch Daily Schedule” for the Crossroads Station that illustrates a final truck is currently assigned to dispatch mail daily at 18.25. The Union contends of a 5 PM window of operations goal is unrealistic. Even when the goal is met the Union contends the mail is “on hold” until the final truck pulls away from the dock at approximately 18.42. The Union contends this does not justify the simultaneous scheduling of overtime and non-overtime carriers.
CHANGE OF SCHEDULE
Carrier’s two carriers had Change of Schedules that were disapproved as a matter of a blanket policy of the Postmaster. On 3/2/07, The Supervisor informed the Shop Steward that the Postmaster policy is that Supervisor will not approve Change of Schedules.
Management issued a blanket policy to deny Change of Schedules, yet there are Carriers that begin tour at will, without a PS 3189 signed by a Shop Steward.
Form PS 3189 for the requesting Carrier sat on the Supervisors desk from 2/27/07 until 3/2/07 (when the blanket policy was issued). It has been the Past Practice that when a PS 3189 is left on the Supervisor’s desk, and the Carriers is not told if it is Denied within two (2), it is automatically approved.
BARGAIN IN GOOD FAITH
Management has violated Article 15.3.A of the National Agreement and, in effect, failed to bargain in Good Faith by ignoring the Informal Step A Decision dated 4/20/07.
SPECIAL ROUTE INSPECTIONS
The M-39, part 271g states, "If over six consecutive week periods a route shows over 30 minutes of overtime or auxiliary assistance on each of 3 days or more, in each week during this period, the Regular Carrier assigned to such a route shall, upon request, receive a Special Mail Count and Inspection within 4 weeks of request". Clearly, the Carrier, Route 13009, meets those criteria.
Management has violated Articles 5, 19, and 34 by not following the conditions of employment that relate to wages, hours, work measurement systems, handbooks, manuals and published regulations.
Numerous arbitration awards and/or Step 4 Decisions state that the provisions of Part 271 of the M-39 refers to the route and not the Carrier on the route, despite the fact that the purpose of any such inspection is to adjust the route to the individual Carrier.
DENIED LIGHT DUTY
Management is in violation of Item #17 of the Local Memorandum of Understanding that states in part that:
It is agreed that light duty assignments within St. Petersburg and its stations and branches for Letter Carriers may include duties, where qualified and capable based on their restrictions, involving, but not limited to, the following:
(1) Assisting routes by setting up mail, casing, flat assistance, UBBM.
(2) Collection Management System Quality Control.
(3) Delivery of Express Mail and Collection Mail, if within physical limitations.
(4) Auxiliary Assistance, consistent with restrictions.
(5) Assist with DPS Quality Control.
(6) CFS Review Mail to include assistance with forward able mail (parcel post-acct mail).
(7) Assist with Centralized Delivery Program.
MEDICAL DOCUMENTATION
Management has failed to follow their own provisions in ELM 513.36 Documentation Requirement's. For period of absence of 3 days or less, Supervisors may accept the employees 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 or when the Supervisor deems documentation desirable for the protection of the interests of the Postal Service. The grievant is not on the Restricted Sick Leave List. The grievant has no history of sick leave abuse. (2 unscheduled absences since 2006)
Management has failed to follow the provisions of Article 10.5 of the 1994-1998 National Agreement, Section 5.D. Sick Leave for period of absence of three (3) days or less, a Supervisor may accept an employee's certification as reason for an absence.
The request was not for the protection of the interests of the Postal Service.
GUARANTEE
Management has violated Article 8.8b by not compensating the Carrier the full 8 hours that is guaranteed for working his N/S day.
Management has violated ELM 432-63 which states, "An employee on guaranteed time may waive the full 8 hours for illness or personal emergency."
Management has violated Step 4 Decision #H4N-2D-C 40585 which states: "Management may not solicit employees to work less than their call-in guarantee, nor may employees be scheduled to work if they are not available to work the entire guarantee. However, an employee may waive a guarantee in case of illness or personal emergency. This procedure is addressed in the F22, Section 22.14 and the ELM, Section 432.63". In a "National Level" agreement dated 11-14-88, it also states illness and personal emergency are the only reasons guarantee time can be waived. Neither management nor the Letter Carrier has the right to waive the 8 hour guarantee under other conditions.
PTR OVERTIME VIOLATIONS
Management is in violation of Article 8. Article 8.5 provides that management has the right to determine whether to give overtime work to a Part-Time Flexible, Casual, or a Full-Time employee. It makes no such provisions for Part-Time Regulars. Page 8-11 of the NALC-USPS Joint Contract Administration Manual identifies Auxiliary Assistance as Casuals, Part-Time Flexibles at the straight time or regular overtime rate, available Full-Time Regular employees at the straight time rate, and Full-Time Carriers from the Overtime Desired List at the regular overtime rate. Again, there are no such provisions for PTRs.
PTR Carriers are hired for a specific job, with a regular schedule of work hours and non-scheduled day of less than 40 hours. They cannot sign the Overtime Desired List and should not be worked prior to Overtime Desired List volunteers.
Management is in violation of their own May 29, 1985 letter relative to management's rights and obligation in the utilization of Part-Time Regulars. Item number 13-A clearly states that: Expansion of hours: While a Part-Time Regular is hired for a fixed number of hours per week, their hours can be expanded in unusual, unpredictable and non-recurring situations. It is not intended that Part-Time Regulars would have their hours of work expanded in a predictable fashion on a recurring basis. Postal Managers must be on constant alert to avoid expanding Part-Time Regular hours of work contrary to their intended use.
Management has violated the provisions of Article 7.1.A.2, which requires that PTR’s have regular schedules. This regular schedule consists of a 5 day week with a non-scheduled day. Management may not change the schedule or expand the PTR's hours (to include non-scheduled day) except for unpredictable, emergency situations. The events on the day in question were not unpredictable or an emergency. Management regularly works the PTRs out of their schedule and expands their hours to avoid overtime pay to Carriers on the Overtime Desired List.
Unit 71 Supervisor has continually scheduled PTR Carriers to work outside their assigned hours.
Management has violated their own policy concerning working PTR Carriers outside their assigned schedule. In USPS Memo dated 1/29/00 from Postal Operations Manager, Nancy Fryrear, it is clearly stated that this use of PTRs is prohibited. In a letter dated 5/18/00, District Manager, Michael Jordan reaffirms management's policy of not normally expanding the work hours of PTRs.
HOLIDAY SCHEDULING
Management is in violation of Article 11, Section 6.B of the National Agreement. Section 6.B requires that for Holiday scheduling as many full-time and part-time regular schedule employees as can be spared will be excused from duty on a holiday or day designated as their holiday. Such employees will not be required to work on a holiday or day designated as their holiday unless all casuals and part time flexibles are utilized to the maximum extent possible, even if payment of overtime is required.
ACT OF GOD
Management is violating the provision of ELM 519 which states in part that “Employees scheduled to report who are prevented from reporting or, who after reporting, are prevented from working by an act of God may be excused as follows: Full-time and part-time regular employees receive administrative leave to cover their scheduled tour of duty not to exceed 8 hours”.
FFD FORCED LEAVE
On 8/15/05, The Grievant had a Psychiatric Evaluation for Fitness For Duty Examination by Dr. Shodan A. Patel, M.D., his report was received at the Tampa Health Unit on 9/15/05. On page four (4) of his report, he clearly states in part “in my opinion still fit for continued full time work”. He also advises her to seek further psychological evaluation. In a memo dated, 11/9/05, from The Occupational Health Nurse stating in part that we received the final medical report from the postal contract physician regarding employee the employees fitness for duty examination by Dr. Patel. The finding/recommendations are: Ms. Lugo is not currently fit for duty until she provides documentation from her treating psychiatrist regarding her current condition and treatment.
MODIFIED JOB OFF – CHANGE STARTING TIME
Management has violated the provisions of ELM 546.142 which states in part that “When an employee has partially overcome the injury or disability, the Postal Service has the following obligation: To the extent that there is adequate work available within the employee’s work limitation tolerances, within the employee’s craft, in the work facility to which the employee is regularly assigned, and during the hours when the employee regularly works, that work constitutes the limited duty to which the employee is assigned”.
CROSSING CRAFTS
Management has violated Article 7.2 of the National Agreement, which states in part that Normally, work in different crafts, occupational groups or level will not be combined into one job.
RETURNING TO OFFICE
All routes were adjusted with a 10 minute time after returning to office before ending tour to give Carriers enough time to clear accountable mail, return empty equipment, case and process all undelivered mail, take your mark-ups and mis-sorts to throwback case, and wash up time if necessary.
Carriers have been forced off the clock by Manager Goldstein. Some Carriers were told they had to take some type of leave because their five (5) minutes were up.
Management has violated Article 30, Item #1 of the Local Memorandum of Understanding that clearly states It is the position of the U.S. Postal Service that those employees in the Letter Carrier craft that perform dirty work of toxic materials should be granted such time as is reasonable and necessary for washing up.
VIOLATION OF T-6 MEMORANDUM
Did Management violate the 03/2004 Memorandum of Understanding and Items 14 & 18 of the LMU when they scheduled Carriers, who was assigned to Zone 10 N, to work in Zone 10 S on 7/2/07. 7/6/07, and 7/10/07? If yes, what is the remedy?
Management has violated the 03/2004 Memorandum of Understanding, which clearly states that If a T-6 has routes in more than one “work unit” or “station” and is “bumped”, he/she would be limited to serving an “open” or temporary bid route on their swing ‘only” in the unit or station to which regularly assigned that day. Management violated Article 30 of the National Agreement (Items 14 & 18 of the LMU) which separates overtime by units or Zones>
Clerks in Lieu of Carrier (pieces to street)
The Union contends management is in violation of Article 3 of the National Agreement. Article 3 states in pertinent part: A. to direct employees of the Employer in the performance of official duties. C. To maintain the efficiency of the operation entrusted to it. F. To tale whatever actions may be necessary to carry out its mission in emergency situations, i.e. an unforeseen circumstance or a condition of circumstances which calls for immediate action in a situation which is not expected to be of a recurring nature. The language included in the JCAM explains While postal management has the right to “manage” the Postal Service, it must act in accordance with applicable laws, regulations, contract provisions, arbitration awards, letters of agreement, and memoranda. Article 3.F Emergencies provision gives management the right to take whatever actions necessary to carry out its mission in emergency situations. An emergency is defined as an “unforeseen circumstance or a combination of circumstances which calls for immediate action in a situation which is not expected to be of a recurring nature”. The Union contends the circumstances of June 23re were not that of an emergency. Hester was aware of her obligation to distribute pieces to the carriers on the street. She knew this in her normal routine of assigning pieces to ODL carriers. Hester violated the contract by using a Clerk rather than an available ODL Carrier to distribute the pieces.
As outlined above: The language included in the JCAM explains While postal management has the right to “manage” the Postal Service, it must act in accordance with applicable laws, regulations, contract provisions, arbitration awards, letters of agreement, and memoranda. Article 7.2C and the Memorandum of Understanding Re: Article 7, 12 and 13 Cross Craft and Office Size. Gives management a very limited right to make cross-craft assignments. Management’s desire to avoid additional expenses such as penalty overtime does not constitute and emergency.
