________________________________BEFORE: DONALD E. OLESON, JR.
In the Matter of Arbitration GRIEVANT: Charles Lopez
between POST OFFICE: Oxnard, California
UNITED STATES POSTAL SERVICE CASE NO: F90N-4F-C93040583 NALC CASE NO: GTS #25783 and
NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO
For the U.S. Postal Service: Mr. Mike Thomas
For the NALC: Ms. Joan M. Hurst
Place of hearing: Oxnard, California
Date of Hearing: March 12, 1997
AWARD: The grievance is sustained. Since the Grievant's route wasn't properly adjusted to 8 hours until August 1996, the Employer shall be required to pay the Grievant $10 per day, 6 days a week from June 26, 1992 the day the route was incorrectly adjusted, until August 1, 1996.
Date of Award: May 9, 1997
(signed by Donald E. Olson, Jr.)
This matter was conducted in accordance with Article 15 of the parties collective bargaining agreement. A hearing was held before the undersigned at the postal facility located at 2901 East Camino Del Sol, in Oxnard, California on March 12, 1997. The hearing proceeded in an orderly manner. There was full oportuninty for the parties to submit evidence, to examine and cross-examine witnesses. All witnesses testified under oath as administered by the Arbitrator. The Arbitrator tape-recorded the proceeding as an extention of his personal notes. The advocates fully and fairly represented their respective parties. The parties submitted the matter on the basis of evidence presented at the hearing, and arguements set forth in their respective post-hearing briefs. The parties stipulated the issue(s) to be determined by this Atbitrator at the hearing. Ms. Joan Hurst, Regional Administrative Assistant, represented the National Association of Letter Carriers, AFL-CIO, herinafter referred to as "the Union", and Mr. Charles Lopez, herinafter referred to as "the Grievant". Mr. Mike Thomas, Area Labor relations Specialist, represented the United States Postal Service, herinafter referred to as "the Employer". The parties introduced four (4) Joint Exhibits, all of which were received and made part of the record. The Employer introduced one (1) Exhibit, which was received and made part of the record. The Union introduced two (2) Exhibits, all of which were received and made part of the record. The parties requested an opportunity to file post-hearing briefs. The Arbitrator received the Union's brief on April 21, 1997, and the Employer's brief on April 28, 1997 at which time the hearing was closed. This Opinion and Award will serve as this arbitrator's complete final and binding decision in this matter. The Arbitrator promised to render this Opinion and Award within thirty (30) calendar days after the hearing record was closed.
The stipulated issues(s) are:
RELEVANT PROVISIONS OF HTE NATIONAL AGREEMENT
The Employer shall have the exclusive right, subject to the provissions of this Agreement and consistant with applicable laws and regulations:
A. To direct employees of the Employer in the performance of official duties;
B. To maintain the efficiency of the operations entrusted to it;
C. To determine the methods, means, and personnel by which such operations are to be conducted.
HANDBOOKS AND MANUALS
Those parts of all handbooks, manuals and published regulations of the Postal Service, that directly relate to wages, hours or working conditions, as they apply to employees covered by this Agreement, shall contain nothing that conflicts with this Agreement, and shall be continued in effect except that the Employer shall have the right to make changes that are not inconsistent with this Agreement and that are fair, reasonable, and equitable. This includes, but is not limited to , the Postal Service manual and the F-21, Timekeeper's Instructions.
Notice of such proposed changes that directly relate to wages, hours, or working conditions will be furnished to the Union at the national level at least sixty (60) days prior to issuance. At the request of the Union, the parties shall meet concerning such changes. If the Union, after the meeting, believes the proposed changes violate the National Agreement, (including this Article), it may then submit the issue to arbitration in accordance with the arbitration procedure within sixty (60) days after the notice of proposed change. Copies of those parts of all new handbooks, manuals and regulations that directly relate to wages, hours or working conditions, as they apply to employees covered by this Agreement, shall be furnished the Union upon issuance.
Article 19 shall apply in that those parts of all handbooks, manuals and published regulations of the Postal Service, which directly relate to wages, hours or working conditions shall apply to transitional employees only to the extent consistent with other rights and characteristics of transitional employees negotiated in this Agreement and otherwise as they apply to the supplemental work force. The Employer shall have the right to make changes to handbooks, manuals and published regulations as they relate to transitional employees pursuant to the same standards and procedures found in Article 19 of this Agreement.
The grievant was 56 years old at the time this grievance arose. He had been employed as a regular letter carrier at the Oxnard Post Office for several years. He began working in the craft in December 1980. For eleven (11) years prior to the incident which gave rise to this grievance, the Grievant had been assigned to Route 3029. The Grievant's route was inspected during the week of May 11, 1992 through May 16, 1992. During this inspection, the Grievant's office and street performance were observed and evaluated. The route inspector during the inspection process took extensive notes of his personal observations of the Grievant, and noted some time wasting practices. The inspector determined that these time wasting practices totaled approximately 46 minutes in the office and 13 minutes on the street. Thereafter, the results of this inspection was reviewed by the Oxnard Postmaster. The Postmaster then determined basedupon the route inspection data that the Grievant's route averaged 4 hours 35 minutes of street time and 4 hours 44 minutes of office time during the week of inspection. Thereafter, the Postmaster who had extensive experience in route examinations, concluded that the Grievant's route should be adjusted from 9 hours 19 minutes to 8 hours 37 minutes, due to the time wasting practices displayed by the Grievant during the week of inspection. In addition, the Postmaster provided the Grievant's route with permanent relief by removing the 900 - 1499 block of Indigo place, which consisted of 41 minutes of total office and street time. This resulted in the Grievant's route being reduced from 8 hours and 37 minutes of total evaluated time to 7 hours and 56 minutes. The Union grieved the evaluation of the Grievant's route, arguing that the Employer's actions were arbitrary and capricious. The Union requested that 29 minutes be returned to the routes' office time and that 49 minutes be returned to the street time. In addition, the Union maintained that the Grievant's route should be further adjusted by 1 hour and 18 minutes, claiming the route had not been properly evaluated or adjusted in accordance with the M-39 handbook. The grievance was processed through all steps of the grievance procedure, and was denied by the Employer. The Union appealed the matter to arbitration on February 15, 1995.
POSITION OF THE PARTIES
POSITION OF THE EMPLOYER
The Employer maintains it did not violate the provisions set forth in the M-39 and M-41 as incorporated in the National Agreement, when it made deductions to the Grievant's route. In support of that contention, the Employer claims the route inspection was performed by a route examiner with extensive experience as an examiner. Furthermore, the route examiner was unbiased. In addition, the Employer contends the examiner noted numerous time wasting practices utilized by the Grievant while delivering his route during the week of inspection. Additionally, the Employer contends that after the Oxnard Postmaster reviewed and evaluated the results of the Grievant's route inspection, he made appropriate adjustments, so that the route's time was as close to 8 hours per day as possible. The Employer argues that the deductions made on the Grievant's route were reasonable. Moreover, the Employer asserts that Article 3 of the National Agreement establishes that management had the right to make the deductions in question and that neither the Grievant or the Union had any negotiated right to substitute their judgement in this matter. In addition, the Employer avows the Grievant's remedy in this matter was to request a special inspection after the adjustments had been made. However, since he did not, he has slept on his rights. Further, the Employer avows that the Union has failed to present any evidence of any specific violation of any provisions of the M-39 and M-41 Handbooks. In summary, the Employer requests that the grievance be denied.
POSITION OF THE UNION
The Union claims the Employer violated the M-39 and the M-41 when it made deductions to the Grievant's route after an inspection had been made in May 1992. In addition, the Union argues the deductions were not supported by evidence, but were merely estimated, and as such were arbitrary and capricious. Furthermore, the Union asserts that the Employer made inappropriate deductions from the Grievant's office and street time evaluations. Moreover, the Union maintains the only adjustments to office time that are allowable in the M-39 Handbook, are in Section 242. The Union argues, however, adjustments to those line items must be in compliance with a Step 4 settlement agreement dated November 12, 1980. Additionally, the Union asserts the Grievant during the week of his route inspection beat the standard office time by an average of 17 minutes per day, therefore no further deductions were appropriate. Also, the Union avows that the Employer while conducting route inspections and evaluating them cannot be allowed to "pencil whip" a route to 8 hours by taking inappropriate deductions to reduce further the "under standard office time". Moreover, the Union also claims that street time deductions taken by the Employer are in violation of the M-39 Handbook, In summary, the Union claims it met its burden of proof that the Employer violated the terms of the M-39 ans M-41 Handbooks in making improper deductions for both office and street time to the Grievant's route. Additionally, the Union requests the Arbitrator to sustain the grievance and order the Employer to put back 29 minutes of office time and 49 minutes of street time that were improperly deducted from the Grievant's route, and order the Employer to adjust the Grievant's route to as near 8 hours as possible.
This Arbitrator has carefully reviewed the record, pertinent testimony and the parties excellent post-hearing briefs, as well as cited arbitration awards.
At the outset, this Arbitrator is cognizent of the rights exclusively granted to the Employer under Article 3 of the collective bargaining agreement. clearly, the Employer is empowered to "maintain the efficiency of the operations entrusted to it, as well as to determine the methods and means by which operations are to be conducted". By all means, this exclusive right includes the right to periodically conduct route inspections. However, these rights are subject to the provisions of the National Agreement, and must be consistent with applicable laws and regulations. Furthermore, route inspections have to be conducted in accordance with procedures set forth in applicable Employer policy. The policy germane to route inspections is entitled the M-39 Handbook. This handbook has been expressly incorporated as part of the National agreement under Article 19, since it directly relates to wages, hours and working conditions as they apply to employees covered under that Agreement. The same is true of the M-41 Handbook.
Initially, this arbitrator notes that the Employer in order to achieve and maintain an appropriate daily workload for delivery units and routes, must make annual route reviews. The purpose of the route review is to verify adjustments which have been taken by management, or need to be taken by management, in order to maintain efficient service. The examiner must inform the carrier that he intends to make a fair and reasonable evaluation of the workload on the route. Without doubt, Section 231.5 of the M-39 obligates the examiner to impress upon carriers that management is just as anxious and desirous of obtaining an accurate count of mail and inspection of the route as the carrier is so, that a fair and equitable evaluation of the workload on the route may be made. (Emphasis supplied).
Under these circumstances, since the Union claims the Employer made inappropriate deductions from the Grievant's office and street time evaluations by merely estimating these times without evidence, this Arbitrator must review the documentation to see if the Employer's actions were arbitrary or capricious and in violation of the provisions set forth in the M-39 and M-41 as incorporated in the National Agreement. This Arbitrator normally is reluctant to "second guess" actions taken by management officials who are either certified or recognized to be "specialists" or "experts" in their field, trade or vocation, unless their judgement or decision related to a particular matter is clearly not fair and equitable, or is arbitrary and capricious and in violation of employer policy, rules or regulations.
In the opinion of this Arbitrator, it is clear that both Mr. Robert Herrera and Postmaster Chavira have extensive backgrounds as it applies to conducting route inspections. Mr. Herrera testified that he actually provides training to other managers who do route inspections and had personally performed over 100 route inspections during his career. On the other hand, Postmaster Chavira not only has extensive experience in the route inspection process, but also in the adjustment process. Certainly, the Employer met the obligations set forth in Section 216.1 of hte M-39, which mandates that the management member assigned to perform a route inspection "must be thouroughly familiar with the inspection procedures and shall be held responsible for the accuracy and completeness of all data assembled by them and for its proper evaluation."
Accordingly, this Arbitrator must review the data assembled to ascertain if the Grievant's route inspection material was properly evaluated, so as to determine if the deductions taken in this case were properly made.
This Arbitrator has reviewed the M-39 Handbook, and concluded that nowhere in that document does it allow the Employer to reduce any of the "standard time" mathematical calculations found in lines 1 through 13 of Form 1838c. Moreover, this Arbitrator is aware of the National Pre-Arbitration settlement dated February 6, 1974, in which the parties recognized that changes in work and time standards will be initiated only at the National level. As such, it is abundantly clear the the Employer's local management does not have the authority to ignore th eM-39 Handbook whin it inspects and adjusts routes. Of equal importance, the Union submitted two National Level arbitration awards involving the interpretation of the provisions of the M-39, which are germane to the issue at hand. As both parties are aware, National Level awards are binding as they apply to the interpretation of the National Agreement.
This Arbitrator agrees with the Union's contention that Arbitrator Aaron's decision in Case No. NC-0-11675 precludes the Employer from doing what it did in the route inspection in this case, which was to reduce the Grievant's office time to less than standard office time and even less than the net time used by the Grievant. As noted, prior to the Grievant's route being inspected, it was determined his "office-standard time" was 4.52 hours. After the inspection was completed, the Grievant's "net" office time was 4:35 hours. Certainly, the Employer is allowed under Section 242.311 of the M-39 Handbook under normal conditions, to set the carriers office time allowance at the lessor of the carrier's average time used to perform office work during the count period, or the average standard allowable office time. Local management was aware the the Grievant had beat standard office time goals by 17 minutes per day, however, they decided his performance could be improved if the documented time wasting practices were eliminated. As such, management unilaterally adjusted and reduced the Grievant's "net office time" used by him during the week of inspection from under standard by 17 minutes to under standard by 46 minutes, based soley upon the inspector's comments, and the evaluation made by the Oxnard Postmaster. the Employer's actions clearly were incorrect. Without doubt, this Arbitrator concludes the Employer is only allowed to reduce office time equal to the standard allowable time, but not below that standard.
That conclusion is sustained by the Arbitrator Aaron's well-reasoned and persuasive opinion in the above-referenced cited case, in which he concluded albiet the Postal Service could demonstrate that the grievant was regulating his performance, it could not reduce the office time below the average standard allowable time. Moreover, Arbitrator Aaronfound that even if the Postal Service could have sustained its allegation that the grievant in that case was "soldiering on the job", its only course of action available was to discuss the problem with the grievant, as provided in Section 242.211 of the M-39 Manual, and to reduce the allowable office time to the average standard allowable time, as provided in Section 242.213. (Emphasis supplied). Arbitrator Aaron then concluded what the Postal Service actually did in that case was to unilaterally change a time of word standard without advance notice to the union.
To be sure, that is exactly what the Employer did in this case, which is a violation of Article XXXIV of the National Agreement, as well as pertinent provisions of the M-39 Handbood and applicable federal labor laws.
Likewise, the Employer violated the spirit and intent of the provisions set forth in the National Agreement, as well as pertinent provisions of the M-39 and M-41 Handbooks, when it improperly selected the week of count and inspection for their selection of street time. Clearly, the evidence indicates the 7 week random count on the form 1840B showed a street time average of 5 hours and 20 minutes, while the week of inspection showed a street time of 4 hours and 44 minutes. In fact, the Employer selected the lower of the street times by their selection of the week of inspection (4:44 hours). Indeed, the Employer is permitted to make this selection in accordance Section 242.321 of the M-39 Handbook, however, this selection must be justified in accordance with Section 242.322. Section 242.322 mandates that the manager will note by explanatory Comment on the reverse side of Form 1840 or attachments thereto why the base street time allowance for the route was established at the time selected. The manager's selection of the street time allowance cannot be based on the sole criterion that the particular time selected was lower. It appears that the manager's explanatory comments as to why he selected th elower street time allowance for the Grievant's route, pertain basically to short-comings of the Grievant's delivery style, as observed by the route inspector on the street. For example, some of the comments made on the Form 1840stated: "By making improvements on the street...having mail ready at delivery point and showing some sence of urgency, carrier can meet expectations." Clearly, these comments are subjective, and really do not constitute substantial or good enough reason for the Employer to select the lower of the street times. There are so many variables that may effect performance that it is almost impossible to determine quantitatively how much delay, if any, is due to the Grievant. There is no dispute that the Grievant at the time the inspection was conducted was in his mid-50s and had a 30% service connected disability.
Furhtermore, this Arbitrator notes that the parties on October 31, 1995, entered into an agreement after the pre-arbitration discussions were held involving Case No: HIN-IN-D36894 and Case No: HIN-IQ-D34997, which in pertinent part established it was "understood that there is no set pace at which a carrier must walk and no street standard for walking."
By all means, this Arbitrator is of the opinion that rather than arbitrarily selecting a lower street time, the Employer should have authenticated an actual time savings by informing the Grievant of the observed alleged incorrect methods of delivery on the street, and provided appropriate instructions to correct the methods in question. Thereafter, the Employer could have reinspected to validate true savings, if any.
This Arbitrator concludes the Union has demonstrated that the street time deductions taken by the Employer in this case are in violation of the M-39 Handbook. Moreover, the Grievant testified without rebuttal that his route was not finally adjusted to 8 hours until August of 1996.
Thus, based upon the record as a whole, and for reasons set forth above, this Arbitrator concludes the deductions to the Grievant's route were made in violation of the M-39, M-41 as incorporated in the National Agreement. As such, a remedy is appropriate.
AWARD The grievance is sustained. Since the Grievant's route wasn't properly adjusted to 8 hours until August 1996, the Employer shall be required to pay the Grievant $10 per day, 6 days a week from June 26, 1992 the day his route was incorrectly adjusted, until August 1, 1996.
Dated this 9th day of May 1997