‘

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: JBO12LETTER 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 workovertime when there were ODL carriers available. The Service is directed to compensate the ODL carriers for a total of 6.03 hours in a manner to be determined bythe Union.

Date of Award: May 7, 2012

GREAT LAKES AREA REGULAR PANEL

2 /.

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Background:

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 49

hours of overtime was worked that day by the five carriers who were regularly assigned to work on

that Saturday and were on the overtime desired list (ODL). Ofthis total, 238 hours were penalty

overtime. In addition, nine carriers who were working that day worked a total of 6.03 hours of

overtime, although they were not on the ODL. Two letter carriers who were on the ODL, but not

scheduled to work on Saturday, were not called for overtime work that day. Of the ODL carriers

who 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) for

the Main Post Office at St. Charles that required all letter carriers to return from their street duties

by 6: 10 pm. This time requirement allowed for twenty minutes to prepare all collected mail to be

processed 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 the

ODL, but were required to work overtime, as well as the carriers who were on the ODL and could

have worked the overtime hours, The grievance was denied by the Service and was then progressed

through the grievance procedure in accordance with the provisions ofthe National Agreement. The

parties 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 were

received 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 8

regarding the use of non-ODL carriers for overtime work in lieu of available ODE carriers? If so,

what is the appropriate remedy?

tJS1S Case No. JO6N-4J-C 1 1335738DR1 No 05 212581

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Position ofthc tJnion:

The Union asserts the reason given by management for not fully utilizing the ODE carriers

was the Window ofOperation (WOO). The Union does not challenge the Service’s right to establish

a 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 of

Article 8.5.D, which states:

One purpose ofthe Overtime Desired List is to excuse full-time carriers notwishing 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 assignmenton 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 carriers

as to their reasons for not placing themselves on the ODL, arguing that the harm done by the Service

by 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 into

vacant routes several days in advance, as stated in Section 126 of Handbook M-39. The Union

denies 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 the

scheduled carriers could have been required to work additional hours, This could have been

accomplished, says the Union, by asking carriers to waive their lunch period or having them report

for work 30 minutes early. Furthermore, the Union avers the station is understaffed by as many as

seven carriers. With 38 routes and one auxiliary in the station, the Union notes this amounts to an

18% shortage of staff.

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The Union points out that there have been several grievance settlements at this facility when

non-ODL carriers were required to work overtime. In addition to monetary remedies, it says

management has agreed to cease and desist from this practice. It cites the B Team decision in a

grievance arising on March 30, 20 1 1 , stating as follows:

The information in the file lends its support to the union’s contentions thatmanagement, th.ough well within their rights to establish a WOO, failed to meet theirobligation to adequately plan in advance so as to meet the requirements ofthe WOOand protect the rights of its employees under Article 85.G.

the fact that management needed to draft (12) non-OTDL carriers on theday in question, would also lend support to the unions argument that the WOO isdysfunctional in its current form.

Concluding that the Service has violated the Agreement, as well as the cease and desist orders

ofprior grievance settlements, the Union asks that the grievance be sustained. As a remedy, it asks

the Arbitrator to direct that both the ODL carriers be made whole by being paid up to 1 2 hours for

time lost or worked by non-ODL carriers. It also asks that the non-ODL carriers who were drafted

for overtime be made whole by being paid an additional 50% premium for the hours they worked

on 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 cites

the following Awards:

BO1N-4B-C 06072667 Arbitrator CenciEO1N-4E-C 06042723 Arbitrator DiltsEO1N-4E-C 061 75483 Arbitrator DiltsEO1N-4E-C 06260805 Arbitrator DiltsJO 1 N-4J-C 09291811 Arbitrator DiltsBO1N-4B-C 06079858 Arbitrator DeinhardtCO6N-4C-C 09190271 Arbitrator Wallace-CurryAO6N-4A-C 08305269)AO6N-4A-C 08305275) Arbitrator Rosen

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Position of the Service:

The Service argues the Union has failed to meet its burden ofproofby establishing a prima

fade case. It cites the testimony ofPamela Davis, who was the Officer-in-Charge ofthe St. Charles

Post 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 mail

volume, and a resultant decline in revenue. According to the Service, Davis had identified multiple

hours 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 being

closed, the Service contends this was not an unusual situation.

The Service states that Transitional Employees and ODL carriers were assigned overtime up

to the WOO before it drafted non-ODL carriers for overtime work. It insists that had the ODL

carriers been assigned overtime up to their maximum, they would have worked beyond the WOO

and the Dispatch of Value would have been missed.

The Service points out that full-time carriers are guaranteed eight hours ofwork or pay in lieu

of when scheduled to work, Because the non-ODL carriers worked a total of 6.03 hours on other

than their own routes, the Service contends the Union is advocating inefficiency by asking that it be

required to use ODL carriers on their non-scheduled days.

The Service concludes it had a right to schedule non-ODL carriers to perform overtime work

under 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 list

may 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 the

following Awards:

B1ON-4B-C 05182951)BO1N-4B-C 05183011) Arbitrator LaLondeAO1N-4A-C 06061330 Arbitrator ImhoffH4C-NA-C 30 Arbitrator MittenthalKO1N-4K-C 06201761)KO lN-4K-C 06201784)KO1N-4K-C 06201804) Arbitrator Lurie

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118N-5B-C 1 7682 Arbitrator AaronAOl N-4A-C 06040079 Arbitrator DeinhardtJO6N -4J-C 1 03 05 73 0 Arbitrator Simon

Discussion:

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 to

maximize their income by seeking as much overtime work as possible. At the same time, there have

always been employees willing to forego additional compensation in return for more freedom to

spend their time away from work. Conflicts arise, as it has in this case, when those seeking more

overtime are deprived of work opportunities because those who do not want additional work hours

are required to perform overtime. One group claims they are economically harmed while the other

asserts a more intangible loss.

The Union and the Postal Service have approached this dichotomy by establishing, under the

National Agreement, a means for employees to express their preference. In an ideal world, only

those employees who have placed themselves on the Overtime Desired List will be called for

overtime work. Those who have not would be free to make commitments for activities outside of

their regular work hours. Ifonly the world worked so perfectly. ODL carriers might be unavailable

or already scheduled to work their maximum hours. The parties have agreed, though, that when

ODL carriers are available for overtime work, they are to be given preference for such work over

employees 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 (JCAM

2009) 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. Beforerequiring a non-ODL carrier to work overtime on a non-scheduled day or offhis/herown assignment on a regularly scheduled day, management must seek to use a carrier

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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-timeregulars for required overtime, Article 8 . 5 .D permits management to move offthe listand require non-ODL carriers to work overtime on a rotating basis starting with thejunior employee. This rotation begins with the junior employee at the beginning ofeach calendar quarter. Absent an LMOU provision to the contrary, employees whoare absent on a regularly scheduled day (e.g. sick leave or annual leave) when it isnecessary to use non-ODL employees on overtime will be passed over in the rotationuntil the next time their name comes up in the regular rotation.

Management may seek non-ODL volunteers rather than selecting non-volunteers onthe basis ofjuniority. Normally, carriers not on the Overtime Desired List may notgrieve 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 carriersworking on their own assignment on a regularly scheduled day. That situation isgoverned 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 by

showing, as it has here, that non-ODL carriers were required to work overtime while ODL carriers

were 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 violationas in any contract case, once it has done so, the burden shifts to the Postal Service toprove 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 threecarriers 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 OTDLand 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 PostalService has not shown an operational need to assign overtime to carriers who werenot on the OTDL in order to efficiently meet delivery goals. The Union has thereforemet 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 beprecedent setting, have held that meeting a window ofoperations justified simultane

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ous scheduling ofOTDL and non OTDL carriers before the OTDL carriers have beenmaxirnliLd [Arhitiatot Richud Mittcnthal 1114(—NA—C3() (1991 )

Management submitted several awards in which the arbitrators concurred thatit 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 maintainthe integrity ol that window there arc times when Management is justified inassigning 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)], RogerMaher [BO1N-43-C D2247724 (February 1, 2005)j; Jo Ann Nixon [GOIN-4G-C0321 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” doesin fact exist. In cases where management presents evidence and/orargument of the legitimate existence of a “window” the Union mustdo more than simply point to the maximum outlined in Article 85.Gofthe Agreement. Likewise, management must be fully prepared torefute argument and/or evidence submitted by the NALC with intentto diminish the legitimacy of management’ s claims.

Marx concluded that the burden of proof is required of both parties. He stated thatthe burden could not be met by the Union simply stating the number ofhours that theOTDL employees did not work on the days at issue. That does not prove there wasa violation of the Agreement. He went on to say:

“The Union must also address whether rescheduling of ODLemployees (for example, earlier starting times) would have been aneffective 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 non

ODL employees in order to meet the WOO. What distinguishes this case is the fact that two ODL

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employees, J. A. Lynch and J. T. James, were on their non-scheduled day and, according to the

Union, were not offered the overtime work opportunities. Davis did not know ifeither ofthem was

called or available. Although she testified that they usually did not get non-scheduled ODL

employees to come in, the Arbitrator must assume they were available in the absence of evidence

to 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 an

unscheduled absence. The Union, however, alleges, and the Service does not refute, that this

employee, 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 other

employees calling in to be absent that day.

Based upon the record before him, the Arbitrator finds that the Service could have avoided

using non-ODL employees for overtime work had either of the non-scheduled ODL carriers been

called in, In light ofthe total overtime worked that day, the Arbitrator does not find that using either

Lynch or James would have resulted in undertime for any ofthe carriers, considering that there were

still several open routes to which they could pivot. There is no evidence to the contrary. Doing so

would have resulted in approximately two hours less overtime to the ODL carriers who were

regularly assigned that day.

The Arbitrator concludes that the Service was in violation ofthe National Agreement when

it forced non-ODL employees to work overtime on June 4, 201 1 when there were ODL employees

available to work. The Service shall be required to compensate the ODL employees for the 6.03

hours oflost overtime opportunity in a manner to be determined by the Union. Consistent with the

findings ofnumerous other arbitrators, it is found that the non-ODL carriers who received payment

for 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 due

as a remedy. The Arbitrator also agrees with the decision of Arbitrator Cenci, supra, that an order

to cease and desist is not appropriate. She wrote:

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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 musttherefore be evaluated on its own facts to determine whether the circumstances thatwould justify such simultaneous scheduling existed.

Award:

The Statement of Issue is answered in the affirmative and the grievance is sustained. The

Service is directed to compensate the ODL carriers for a total of 6O3 hours in a manner to be

determined by the Union. The Arbitrator shall retainjurisdiction for sixty days from the date ofthis

Award solely to resolve any disputes related to the remedy granted. No further reliefis granted under

this Award.

a . i on, rbitrator

Dated May 7 2012Arlington Heights, Illinois