Article 38 – Custodial Staffing (Post Das MS-47 Decision)

June 2, 2009

This is a summary of Regular Panel Arbitrator Jacquelyn F. Drucker’s decision in case K06T-4K-C-08132176 regarding the Postal Service’s failure to comply with the National Level Pre-Arbitration Settlement dated January 29, 2008, which called for developing the custodial staffing packages. The national settlement created the steps to be followed to implement the remedy under Arbitrator Das’ Award regarding the MS-47 handbook modification. In the Agreement, the Postal Service committed to complete, within 30 days, the custodial staffing packages which establish custodial staffing and scheduling of work" according to the principles stated in the 1983 MS-47. As to the local level, the Agreement noted that local unions were entitled to all information relied upon in developing the custodial staffing package(s) . .. including forms 4869, 4839, 4851, 4776 and 4852 as well as e-MARS reports." Further, the parties agreed that -Local Unions may challenge the completed custodial staffing package(s) but that the sole remedy for the period from December 31, 2001. through February 28, 2008, would be increased staffing, because a specific monetary remedy for that period was being provided through that Agreement. The parties added, however, that a remedy that "may be applicable outside this intervening period ... is suitable for a regional arbitrator's decision.

The arbitrator sustained the Union’s grievance by ordering management to post and fill two additional custodial duty assignments, bringing the complement to nine. Further, current custodial employees will share in payment at the straight time for all hours that would have been worked by the two additional custodians who should have been on the rolls for the period from May 1, 2008, until hiring of two custodial employees is effectuated.

In his award he also noted:

Under the January 2008 Agreement, Management had a duty to complete the packages including whatever internal approval processes applied in the 30-day period specified within the Agreement. Failure to complete the staffing package constitutes a breach of the Agreement, and the Union is entitled to grieve such breach. The Union correctly expected that the staffing package would be completed by February 28, 2008. The Postal Service argues that it was not required to have implemented it by that date, and this is rational and reasonable. "Completion" and implementation are different. The Union's argument in this case, however, relates to completion and not the steps associated with implementation, which raise separate issues. . . Management has cited no amendment to that Agreement or even any other award in which it was concluded that the 30-day period applied to something short of completion and that, as the Postal Service essentially argues here, Management had an unlimited time to get packages approved. In this failure to complete the staffing package, the Postal Service has breached the January 2008 Agreement, and this is what the Union challenges.

Union Wins $48 Million Settlement In MS-47 Handbook Grievance - http://www.apwu.org/dept/maint/mntarbitawards-national.htm

Gary Kloepfer
Assistant Director
Maintenance Division

 

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Service of the Industrial Relations Department, Greg Bell, Director

 

Case Number:  H98T-IH-C-992889939

Arbitrator:  Kathryn Durham

For the Union:  Charlie Robbins, National Business Agent

              AWARD SUMMARY

The evidence of record is persuasive that Tallahassee LMOU Item 15 can he read consistently with ELM 546.141 and the National Agreement to afford an APWU craft employee seeking limited duty first consideration for APWU exclusive work over a letter carrier previously assigned to said works Management violated the LMOU by failing to offer to Grievant the exclusive clerk work being performed by Carrier Knight on Tour 2. Management also violated the pre-arbitration precedent signed on April 20, 1999. Cease and desist such future violations. As discussed herein, the Service already paid Grievant out-of-schedule pay, without prejudice to its position at arbitration. Additional monetary remedy is not warranted by the facts presented.

ISSUES

 1) Whether or not management violated the National Agreement and/or Local Memorandum of Understanding Item 15 when it placed Grievant on limited duty outside his craft and his bid hours in August of 1999. If so, what shall be the appropriate remedy?

 2) Whether, based on the doctrines of res judicata or stare decisis, the decision issued by Arbitrator Frost (Class Actions, Tallahassee, H98C-1H-C-9333586 & 587, September 27, 2001) resolved this issue for this facility.

 BACKGROUND                                                                                                      1

 This hearing is a continuation of proceedings began on November 5, 2002, which resulted in a finding by this arbitrator that the issue was not rendered moot by the payment of out-of-schedule premium by management, without prejudice to management’s position on the merits. The hearing on the merits was rescheduled for October 22, 2003, with the added participation of the NALC as an intervening party. The issues as framed by the Arbitrator represent the issues and evidence discussed by both parties.

 OPINION

 The facts are as follows:   Grievance sustained injuries on the job resulting in a claim accepted by OWCP and a disability retirement during the fall of 1999. In August of 1999, Grievant had requested limited duty and was offered accommodation on Tour I in the clerk craft. Grievant clearly requested to be on Tour 2 (his bid hours) or tour 3. Grievant was experiencing severe pain in his ankle, leg and hip. His difficulty sleeping was further aggravated by the change in tours from 2 to 1.

 At least one carrier, Roosevelt Knight, was in a limited duty position in the clerk craft on Tour 2. The testimony of former Tallahassee customer Service Manager Gregory Tidwell is accepted as proof that carrier Knight was performing all clerk work at the relevant point in time. (Union Exhibit 7, Verbatim Reporters Transcript, p. 215) The fact that telephone work can also be carrier work does not diminish the Manager’s testimony that the work being performed in this situation was all clerk work. 

The pecking order established in ELM 546.141 and commented on in the APWU-USPS JCAM was used to place Carrier Knight into the clerk craft on his bid tour some 4 years earlier than Grievant’s request for limited duty.

 The APWU argues that its LMOU establishes that an APWU bargaining unit employee has seniority/superior right to a light or limited duty assignment on Tour 2 than does a NALC bargaining unit employee, even when the NALC craft employee was placed in the assignment significantly prior in time. The ELM and National Agreement are silent on this ‘timing” point.

 The relevant language of the APWU-USPS-Tallahassee P&DC LMOU Item 15 reads as follows:

 

When possible, light duty assignments shall be in the employee’s craft and with the same work tours and off days.  APWU craft employees shall receive first consideration for light duty within their respective crafts.

 

In an effort to accommodate all employees in need of light duty,  regardless of whether it is because of an injury or illness, on the job or off it is agreed that every effort must be made to provide light duty within the employees’ limits, provided  no  APWU  craft  employee  is adversely  affected   in   any  way  with   first consideration  going  to  APWU  craft  employees (clerk,  maintenance,  motor  vehicle).   (Emphasis added by the Arbitrator.)

 The APWU also argues that management violated the long existing LMOU and two recent Tallahassee pre-arbitration settlements by failing to notify the APWU per (LMOU Item 15.1) as to the light duty assignments in APWU exclusive crafts. The relevant language of Item 15 reads as follows:

 

When light duty is requested in an APWIU craft, the following conditions must be met:

 If the craft to which the employee is to be assigned is an APWU exclusive, the Union must be informed, in writing, stating the reasons light duty is necessary and if craft crossing is necessary, the reasons why light duty is not available in the employee’s craft. The notice will include where they are working, what duties they are performing, and what their limitations are (what duties ca they perform and what duties are they prohibited from performing?) What are the restrictions that prohibit the employee(s) from working in their own craft?

 The following Pre-Arbitration settlements were signed in April of 1999 (four months prior to the filing of this grievance) by Customer Service Manager Gregory Tidwell for the Tallahassee facility and Local APWU President Jeffrey Pearlman:

 The Union President shall be notified promptly, of all light and limited duty assignments covering the specific areas of work and the medical restrictions of the employee. All changes in agreed upon job assignments shall be made known to the Union as well. A committee shall be set up immediately to review and assign all light/limited duty work.

APWU has been accommodating in the past with these assignments but it seems obvious that personnel are being placed in clerical assignments with little or no thought given to placing them within their own craft. This practice shall result in grievances with overtime payment being the proper remedy to APWU craft who normally perform the duties.

 

Failure to notify the Union of light or limited duty assignments is a violation of Article 7 of the National Agreement and shall be considered crossing crafts by both the Union and Postal Management. Every effort must be made to place light and limited duty personnel within their own craft, with reasonable accommodations being made for all craft employees.

 

Each AP the Union must be provided updated information an all light and limited duty personnel assigned within APWU crafts, in accordance with the Local and National Agreement. Failure to provide updated information shall result in overtime being paid to APWU craft employees as stated above.

 

The above agreement is precedent setting and shall be honored by both parties to this agreement. (Signed precedent, 4/20/99 for H94C-1H-C-9607059l, H94C-4H-C-98087l35)

 Both the NALC and management argue that displacing a NALC rehab employee working in the clerk craft is not allowed by ELM or Agreement between the parties, whether national or local. They argue that first consideration is relevant only when a craft and non-craft employee come up for placement at the same time. Further, both claim that the APWU’s interpretation would lead to chaos in the management of the light and limited duty program and severe disruption to the affected employees and the affected work area.

 Frost Award

 The Frost Opinion is not binding as to the issues presented in the case at hand. NALC was not a party in the earlier APWU class actions. Additionally, the factual circumstances provide sufficient distinction to warrant consideration of Mr. Steiner’s grievance as a case of first impression. The Arbitrator does take note of the fact that Arbitrator Frost found in the class actions before him that the Postal Service had failed to honor the binding agreements referenced above as Signed Precedent Pre-Arbitration Agreements (April 20, 1999)

 Pre-Arbitration Settlements

 APWU president Pearlman testified unrebutted that management failed to timely provide the APWU with relevant notice and a committee meeting in connection with the Steiner request for limited duty. Management ignored the pre-arbitration agreements of April 20, 1999 again. To this extent, my opinion matches that of Arbitrator Frost in the class action grievances.

Given the Grievant’s inability to work long hours during the relevant period and the lack of specifics as to additional remedy due, no additional monetary remedy beyond that already paid by management results from this managerial violation similarly, the overtime pay contemplated in the April 20 pre-arbs is not applicable to this particular grievance.

 Alleged violation of LMOU when Grievant was not afforded a tour 2 light duty assignment

 The Service argues that it complied with ELM 546.12 when it assigned both Knight and Steiner. The argument misses the point. This grievance boils down to whether management is required to give renewed consideration to pre-existing limited duty placements of non-APWU craft employees in exclusive APWU craft work each time an APWU craft employee applies for limited duty. In other words, was the limited duty placement of Roosevelt Knight, a carrier, subject to review and possible change because an APWU craft employee sought tour 2 limited duty work? I believe Item 15 of the LMOU requires an affirmative answer.

In my view, the LMOU is not inconsistent with the ELM or the National Agreement as it applies to this limited duty.  The LMOU can be read harmoniously with the pecking order of the ELM; it adds an additional craft sensitive level of consideration. The LMOU does not change the fact that management must provide limited duty or pay in lieu to Carrier Knight. It may be though that as a result of the APWU USPS LMOU, Carrier Knight must work a different tour. It is not uncommon for the two Unions to jealously guard their bargaining units and bargaining unit work. The LMOU at issue does just that: First consideration for APWU craft employees for APWU exclusive work.

 Management in Tallahassee was obligated to provide updated lists of light duty assignments each accounting period and to utilize a committee (including APWI appointees) to review and assign all light and limited duty work. Hence, by the time Steiner requested a Tour 2 maintenance light duty assignment, management should have had a system in place for reviewing all assignments and giving first consideration to Steiner over any carrier performing the exclusive clerk work.

 The postal Service argues that the APWU’s interpretation of “first consideration” requirement in LMOU Item 15 is absurd. At page 9 in its brief, the Service argues:

 The arbitrator cannot ignore two important potentially far reaching issues in this grievance. The union’s desire to have this arbitrator issue a ruling that allows for the bumping of employee’s from properly held limited duty positions provided as a result of on the job injuries when no such contractual requirement exists. Such a ruling would be absurd and defy any sense of fairness or reasonableness let alone any contractual obligation agreed to by the parties.

 The evidence of record does not support this argument. First and foremost, there is a contractual obligation and it is established by the LMOU at the Tallahassee facility to give first consideration to the APWU bargaining unit as to exclusive APWU work.

Again, the testimony of Customer Service Manager Greg Tidwell is accepted that the work being done by Carrier Roosevelt Knight at the relevant time was ““all clerk work”. Given management’s failure to abide by its April 1999 pre— arbitration settlements, it must take responsibility for demonstrating that the duties assigned to Knight were inappropriate for Steiner. Had the updated lists and committee (required by the pre-arbs) been in existence, this information would have been available to the Union. Management should not reap a benefit of withholding information.

 The NALC and the Service allege that it would be inappropriate for Steiner to get the tour 2 assignment and Knight to be assigned to duties on tour 3. However, the record is absent of evidence to support this theory.

 At page 5 of its brief, management argues that Grievant could not perform duties. The issue in this grievance is not whether Grievant could have lasted in the assignment occupied by Carrier Knight. The issue is whether this APWU limited duty employee had the right of first consideration for that assignment.

 The Arbitrator accepts the testimony that had Grievant been afforded a tour 2 limited duty assignment, his sleep patterns would not have been as disrupted, and as a consequence he may have been able to work a tour 2 limited duty assignment. We will never know for sure because he was deprived of the opportunity. The letter from Grievant’s treating physician stating that it was medically necessary for Grievant to be absent from work between June and October is taken in context with the evidence as to the disruption in sleep caused by assignment to Tour 1. Medical recommendation had been for Grievant to work his normal bid hours of Tour 2. Thus, statements to OWCP and OPM are not pivotal to resolution of this case.

 Furthermore, testimony is accepted that in the Tallahassee area, tour time is more important than work location. The facilities are not onerously distant from one another.

 I recognize that the LMOU is drafted to apply to both limited and light duty. I am specifically making no ruling as to the applicability  of  the  LMOU  where  a  request  by  an  APWU bargaining employee  for  light  duty  counters  a  carrier’s limited duty assignment of clerk work. In my view, reference in the LMOU to priority for employees injured off-the-job can be ignored. The remainder of the LMOU can be enforced. I am not called by this grievance to resolve the rights of an APWU bargaining unit employee who was injured off-the-job.

 The fact that the NALC was not party to the APWU-USPS LMOU does not render Item 15 unenforceable. To the extent that it can be read consistently with higher authority, it is valid.

 The Union objected to the Service’s addition of new argument and evidence at the arbitration. Such objection was noted. At step 2, management stated that “‘management determined there was no Light/Limited Duty work within the maintenance craft or during his normal hours of duty.” (J2.13) Additional explanation as to work in Maintenance on tour 2 was proffered at arbitration. The record developed by local management was a detriment to the Service at Arbitration.

 The Arbitrator considered all arguments raised by the three parties in their post-hearing briefs. Only those timely raised and germane to resolving the issues presented are addressed herein. The parties provided a total of twenty-eight (28) arbitration awards. They were also read and considered. The Parties approved at the hearing an extension for issuing award in this case.

 AWARD

 The grievance is sustained. Management violated the LMOU, hence the National Agreement, when it failed to give Grievant first consideration over Carrier Knight for tour 2 clerk work. Management violated the pre-arbitration settlement agreements, signed in April prior to this grievance. Management shall cease and desist from violating the LMOU and the relevant pre-arb agreements. Grievant should have been offered a tour 2 limited duty assignment, given that at least one carrier was accommodated on tour 2. The question as to whether or not a light duty employee is entitled to first consideration before a limited duty non-craft employee is not at issue in this grievance and is not resolved by this Award.