Gary Kloepfer's Maintenance Issues

ISSUE

Did the Postal Service violate Article 32 of the National Agreement and/or the Local Agreement when it subcontracted air conditioning work at the Lake Mary, Florida Post Office? If so, what is the proper remedy?

BACKGROUND

This grievance arose as a result of the Postal Service subcontracting air conditioning work at the Lake Mary, Florida Post Office.

CONTENTIONS

The Union Position

The Union contends that the Postal Service violated Article 32 of the National Agreement when it subcontracted out air conditioning work at the Lake Mary, Florida Postal Facility. The Union further contends that employees were available who had the expertise to do the job at less cost by using Postal Employees. The Union further contends that the Postal Service violated a prior Local Agreement which required Management to inform the Local prior to awarding any contract.

The Postal Service Position

The Postal Service contends that the installation of an air conditioning unit on the roof of the Post Office was a major construction project and that the Postal Service did not have the equipment necessary to provide a safe installation. The Postal Service further contends that the Union was notified prior to the awarding of the contract in compliance with the Local Agreement.

DISCUSSION AND OPINION

The advocates are to be commended for their briefs and excellent arguments submitted in this matter.

The case presents two issues to be resolved. The first issue to be resolved is whether or not Management complied with August 3, 1995, a sign off agreement which resolved a prior arbitration case. That agreement is set forth as follows:

The below signed parties agreed to resolve Case No: 31-95-027 with the following agreement.

Plant Maintenance Management agrees to abide by the language in Article 32 of the National Agreement. Further, Management agrees that, in the event consideration is given to subcontracting out any work, the APWU Local will be informed prior to awarding any contract.

The Maintenance Manager testified that the above agreement was made with the Local Union President resolving a prior grievance. Under the agreement the Maintenance Manager was to notify the Local Union prior to subcontracting any work. He further testified that written notification was not required and his only obligation was to notify the Local before awarding the contract. The following record was taken from transcript in this case as follows:

Question: Did you do that in this case?

Answer: Yes, I did.

Question: Are you required to give written notification under the terms of the memo?

Answer: My obligation was to notify them.

In reviewing the written record of this cause which is the Joint 2, the only documentation provided is contained on Page 20 which is set forth as follows:

Facility Project 7/17/96

Install NC Unit on top of PSDS site

Contracting versus utilization of in-house labor

The scope of work required for this project exceeds the capability of the Mid Florida Plant Maintenance Department.

The necessary tools, test equipment, lift equipment, etc., are not available as well as sufficient manpower to accomplish this project.

The remaining written documentation concerning this particular issue was the document contained on Page 9 of the Joint 2 entitled, “Construction Contract, dated 6/6/96” which set forth the costs of the project submitted by the contractor, Colonial Construction. It is notable that there was no evidence that this document or any other cost comparison document was provided to the Union by the Postal Service prior to the letting of the contract. There were some allegations made by the Postal Service that a cost comparison was provided to the Union, but on examination by the Arbitrator the Maintenance Manager testified that no cost comparison was ever made.

The above document dated June 6, 1996 is the only document relating to the subcontracting of work which is contained in the file and is the only document which was submitted as evidence pertaining to same.

The only other relevant evidence presented was the testimony of the Maintenance Manager regarding his notification to the Union on June 17th, 1996, one day prior to the work started on the construction which was testified to as June 18th, 1996.

The Maintenance Manager testified on cross-examination that the contractor submitted this work order estimate on June 6, 1996, which is contained as Joint 2 Exhibit, Page 9. There was no evidence indicating that this document was provided to the Union. The document at the very least indicates that the Postal Service was considering subcontracting as early as June 6, 1996.

There was further testimony from the Maintenance Manager that the “Contract/Construction’ was let end that the construction began on July 18, 1996. This was supported by Joint 2 Exhibit - Pages 21 and 22. The only evidence presented was that this document may have been provided to the Union on July 17, 2003, which was the day before construction began. There is no evidence as to when Management communicated to the Union other than Managements witness who stated he notified the Union on July 17, 1996.

It is also noteworthy that in the Step 2 Grievance Summary, Item 15 (Management’s position), it is stated that “the APWU was notified in the form of the written costs comparison prior to any work being awarded.” There is no evidence to support this allegation and indeed, as mentioned above, when the Maintenance Manager was questioned on whether or not a cost comparison was done, he testified that there was none done.

in reviewing the above facts against the 1996 resolve it is noted that there was no distinction made in the resolve between “Maintenance Service Contracts and Construction Contracts,” as advanced by the Postal Service. The resolve only speaks to “subcontracting out any work.”

Comparing the evidence to the resolve memo it is apparent that the Postal Service has not complied with the spirit of the Resolve Agreement. The key portion of the resolve is the second sentence which reads, “Management agrees that, in the event consideration is given to subcontracting out any work (emphasis supplied), the APWU Local will be informed prior to awarding any contract.”

It is apparent from the evidence presented that consideration was given to subcontracting out the work at least as early as June 16, 1996 as evidenced by the Construction Contract which contained the materials and labor to be provided by the subcontractor. This sentence indicates that the APWU Local should be informed, “prior to awarding any contract.” The evidence establishes that the work on the actual contract began July 18, 1996.

It is inconceivable that the Postal Service would award a contract of this magnitude on July 17, 1996 and the contractor began work on July 18, 1996. There was undisputed testimony by the Postal Service witness that this work began on July 18, 1996. One must take recognition of the obvious that this contract was awarded some period of time before July 17, 1996. All of the evidence contained in the parties’ Joint 2 and the evidence solicited at the hearing on this issue supports the Union position.

Therefore, based upon the above record the Postal Service violated the resolve set forth on Page 14 of the parties’ Joint 2 Exhibit.

Having resolved the first issue in favor of the Union, no opinion is rendered as to the merits as to whether or not the Postal Service had violated Article 32 of the parties’ National Agreement relative to the actual of the subcontracting of the air conditioning work at the Lake Mary, Florida Post Office.

The grievance is sustained. The Postal Service failed to abide by the August 3, 1995 Sign Off Agreement by failing to inform the Union of any subcontracting work prior to awarding any contract. The remedy awarded is based upon the Union’s testimony as to the number of labor hours which would have taken to complete the project which equates to $3,840.00.

Case Number: H00T-1H-D-02120125

Arbitrator: Irving N. Tranen

For the Union: Charlie Robbins

BACKGROUND

The grievant, a Preference Eligible member, was issued a Notice of Proposed Removal stating that the removal action was based on the following reason for attendance related reasons. The Included in the Notice of Proposed Removal were the grievant's notice advising him that in addition to his grievance arbitration rights he could meet with a management representative within ten days in accordance with MSPB procedures. The grievant took advantage of this right and met with local management. A Union representative did not participate in this meeting. As a result of this meeting, the original disciplinary decision was reduced to a 14 day paper suspension.

The Union filed a grievance protesting the Notice of Proposed Removal as it was not party to or in agreement with neither the disciplinary decision nor the unilateral reduction in penalty. It claimed that the disciplinary action was not for just cause based on the merits of the case. In addition, as the grievance was pursued, the Union claimed that management failed to provide all relevant documentation and that it failed to fully discuss all elements of the disciplinary action as required by Article 15's "full disclosure" requirement.

The Union

The Union argues that by date of March 18, 2002, Steward Hall, filed with Mr. Ord, Manager of Maintenance, a request for information and documents. This request, argues the Union, was not satisfied by Management and the Arbitrator is requested to recognize that Management's failure to provide requested information is sufficient to create an adverse inference. This adverse inference, says the Union, is sufficient to sustain the granting of the grievance.

The Union asserts that the Step 2 decision dated April 29,2002, stating that 'Management position is the facts of this incident; the employee was issued a Proposed Letter of Removal on 3/12/02, and based on the explanation evidence provided by employee, the Maintenance Manager made a decision on the proposed letter of removal. The decision was to reduce to a 14-days suspension and this notice was given to employee and union in writing. Therefore the proposed letter of removal does not exist and this grievance is denied" was rendered as to a matter which was not moot, despite the threatened removal being reduced to a 14-day paper suspension.

The Union argues that the failure of the Postal Service to "make a full and detailed statement of facts and contractual provisions relied upon" as required by Article 15.2(d) was an error which precluded the Service from making any argument at the arbitration hearing not considered in the Step 2 decision..

Further, the Union argues, the Postal Service, by, its Notice of Decision, dated March 18, 2002, striking charge 1 of the Notice of Proposed Removal, had so weakened its position that a recision of the entire action should have taken place.

The Union, in conclusion, argues that the grievance filed herein was as to the charges contained in the Notice of Removal. The fact that the Notice of Decision had reduced the penalty for the elements cited in the Notice of Removal to a 14-day suspension did not deprive the Union of continued jurisdiction of the grievance. Yet, the Union points out, when this matter was heard at the Step 2, the only matter considered by the Step 2 designee was whether this proposed removal,
by reason of its reduction to a 14-day suspension, was moot. The Step 2 designee held that "...the proposed letter of removal does not exist and this grievance is denied." Therefore, argues the Union, the Postal Service is estopped from arguing any grounds other than the mootness of this grievance.

DISCUSSION

The Union's argument for dismissal is primarily based on the lack of discussion of this grievance as a fourteen (14) day suspension. Management, it argues, based its denial of the grievance at Step 2 solely on the grounds that the reduction of the proposed removal to a suspension rendered
the matter moot. It did so wrongly.

In effect, the Postal Service's Step 2 Designee, argues the Union, felt that the 14 - day suspension, which remained after the Notice of Decision was not before him for discussion. Thus, Mr. Jose, although he had authority to further reduce or totally eliminate the 14.-day suspension, gave no consideration to doing so. This resulted in the failure to render the grievance its "due process".

It is clear, based on the provisions of Article 15.2 (Step 2) that the Postal Service, having at the Step 2 discussion argued solely that the Notice of Removal had been reduced to a 14-day suspension and that this matter was moot, cannot advance further arguments if this matter proceeds to arbitration.

As to the question of whether a grievance existed at the Step 2, after the Notice of Removal was reduced - this is one which other arbitrators have also had to face. Arbitrator Norman Bennett in Case No. C90C-4G-D-9601041 held that where a Notice of Proposed Removal had issued and had been subsequently rescinded, that there remained an arbitrable grievance. His succinct comment in that case is worth considering. He opined that "Management argues that the grievance is not arbitrable. Reasons in this regard that when a disciplinary action is reduced to nothing, there is nothing to arbitrate. On this point, this Arbitrator has found in prior cases that jurisdiction extends to whatever the disciplinary action was reduced to in the grievance procedure. If otherwise, an employee in any removal case could be suspended, in effect, between the time of the removal and the time the removal was rescinded without that employee having any recourse to the grievance procedure. Obviously, the parties did not intend such a result in Articles 15 and 16. The grievance is arbitrable."

Arbitrator Edna Francis, in Case No. W4C-SF-D-42528, faced this question in a case where the Postal Service informed the grievant, after serving him with a Notice of Removal, that that disciplinary action was being unilaterally reduced to a twelve calendar day suspension. She held that it was the 12-day calendar days suspension which was then at issue in the arbitration proceeding. She noted "The unilateral suspension at issue here grew wholly out of the removal action and is based upon the same charges as the removal. It is not a separate action requiting a Notice of Charges anew ."

In the instant matter, it is clear that Mr. Jose failed to consider and discuss fully the facts of the present dispute. Rather, he noted that "...the proposed letter of removal does not exist and this grievance is denied." he totally failed to meet the obligation placed upon the Employer's Representative as set forth in Article 15.2 (Step 2) (d) and (f).

Numerous arbitrators have held that the failure to provide either a detailed Step 2 or where the matter proceeds to Step 3, a detailed Step 3 response results in such prejudice to the grievant as to deny him due process. See Arbitrator Hamah R. King, Case Nos. G94T-1G-C 97028953; G98C-4G-D-01247318; G98C-4G-D-020184. Arbitrator Ernest Marlatt, Case No. C98T-IG-C 97028 in a statement most applicable here found that "The Union has no contractual right to insist on a Step 2 hearing and/or a Step 2 answer. Of course, by failing to respond at Step 2. the Postal Service is deemed to have admitted that (1) the grievance is timely and (2) the relevant facts recited in the grievance are true."

Arbitrator Patricia S. Plant, speaking to the failure of the Postal Service to meet at either Step 2 or 3 held that "the Arbitrator rules that Management's failure to respond at Step 2 is an admission by Management that the grievance is timely and the relevant facts cited in the grievance are true. ."

AWARD

The grievance is sustained. The 14-day suspension, to which the Notice of Removal was reduced, was not discussed at Step 2. Failure to do so was a deprivation of the Grievant's right to "due process". Failure to provide such elementary "due process" must result in dismissal of this grievance.

Case Number: G98T-4G-C-00267230

Arbitrator: GLYNIS F. GILDER

For the Union: Mr. Terry B. Martinez

In this case the Postal Service failed to fill a vacant Custodial position. The Union contended the Postal Service failed to adhere to the provisions of the MS-47 (an incorporated handbook/manual). For at least the last ten years, the Bartlesville, Oklahoma postal facility has been staffed with two full-time custodians. In December 1999, one of the full-time custodians retired and the Service has yet to fill that vacant position. It is this failure that constitutes the basis of this present grievance.

The arbitrator ruled that the facts in this dispute are simple: where there used to be three employees
(2 full time regulars and one part time regular) working in custodial positions at the Bartlesville facility, there are now two (1 full time regular and 1 part time regular). Where there used to be two full time employees working 40 hours per week, there are now one full time employee and one part time employee working 26 hours per week.

The Union charges the Service with being out of compliance with the required staffing level. Here, in the present case, it is presumed that current staffing levels called for 3 full time custodians -- nothing was introduced by the Service to rebut this presumption. Once one of the custodians retired in 1999, it became incumbent upon the Service to fill the vacant position to maintain the current staffing level. That is, unless changed conditions at the facility required a change in staffing levels.

The Service would argue that it is Management's exclusive right to maintain the efficiency of its operations and to direct its employees and determine the methods to achieve that end. This is true and is stated explicitly in the Contract between the parties. However, this does not give Management and unfettered privilege to run roughshod over the Contract or an absolute right to "direct employees" or "determine the methods, means, and person el" in any manner that it so desires. All the above actions must be done in accordance with the Contract.

The Service would also assert that it was diligently trying to fill the vacant custodian position. Unfortunately, the Contract does not contain a "good faith effort" clause that would give the Service credit for its attempts.

The arbitrator sustained the Union's grievance and also directed the Postal Service to pay 20 hours/week at the appropriate rate to the current full time regular custodian, to be calculated thirty (30) days from the date the custodial position at issue became vacant.

Gary Kloepfer
National Representative at Large

Case Number: G94T-1G-C-99044759

Arbitrator: Ruben R. Armendariz

For the Union: Terry B. Martinez

The grievance is sustained. The Postal Service is directed to pay overtime to the BEM employees for all hours of BEM work continuously performed by other employees (MPE's, ET's, MM's).

In this case the Postal Service assigned Level 7 Building Equipment Mechanic preventive maintenance routes to Level 7 MPE Mechanics and Level 9 Electronic Technicians. These assignments were made seven (7) days a week on all tours on large automated air conditioning systems and large heating systems before maximizing the building equipment mechanics overtime desired list to preclude the payment of penalty overtime.

The Arbitrator finds that the Postal Service utilized other employees instead of the BEM's in order to prevent the payment of overtime. The-frequency, in which, the units are required for preventative maintenance is not "deminimus" and established a need for the BEM's to perform this required work on a continual basis due to their frequency. The Postal Service argued in the grievance procedure that they could not hire additional BEM's. Moreover, the memorandum entered into by Mr. Downs and Mr. Lindberg specifically stated that they did not anticipate the need for other employees to perform the work of BEM's as long as there existed BEM's at a given facility. The East Texas P&DC has two BEM's.

The Arbitrator finds that the Union has met its burden of proof. The Postal Service violated Article 7.2 B., and C., and Article 8.5, Section 5. D. and 38 of the National Agreement.

The Postal Service is directed to pay overtime to the BEM employees for all hours of BEM work continuously performed by other employees (MPE's, ET's, MM's).

The following information should be shared with the Local Safety and Health Committee so that it can include these items during their safety inspections, etc., of the Facility.

Once a year OSHA publishes a list of the ten most frequently cited safety standards. The list is indicative of trends and changes in workplace safety throughout the nation. The rankings could also indicate changes in levels of enforcement.

In 2002, with the exception of a switch in positions between first and second place, the ranking of cited standards remained consistent with the previous year. The construction industry had the largest number of work-related fatalities. Nearly 24 construction workers were killed every week. With 7,953 citations for scaffolding violations, the industry exceeded the 2001's number by well over 800. The most frequently cited standard of 2001 was the Haz-Com standard, but during 2002 the number fell significantly from the previous year's 7,233 citations to 6,702.

Here is the complete OSHA top ten list:

1.    Scaffolding/Construction (1926.451) 7,953 violations in 2002; 7,134 in 2001
2.    Hazard Communications (1910.1200) 6,702 violations in 2002; 7,233 in 2001
3.    Fall Protection/Construction (1926-501) 5,118   violations in 2002; 4,421 in 2001
4.    Respiratory Protections (1910.134) 4,075 violations in 2002; 3,971 in 2001
5.    Lockout/Tagout (1910.147) 3,796 violations in 2002; 3,875 in 2001
6.    Electrical Wiring (1910.305) 3,106 violations in 2002; 3,125 in 2001
7.    Machine Guarding (1910.212) 2,747 violations in 2002; 2,797 in 2001
8.    Powered Industrial Trucks (1910.178) 2,421 violations in 2002; 2,334 in 2001
9.    Electrical Systems (1910.303) 2,219 violations in 2002; 2,223 in 2001

Gary Kloepfer
National Representative at Large

Case Number: G98T-1G-C-01231810

For the Union: Michael Williams

Arbitrator: Mark R. Sherman

Issue:

Higher Level Pay for Instructing Level 2 and 3 Custodians.

Summary:

In this case the Postal Service assigned the duties of training to a Level 2 Custodian and compensated them at the Level 3 rate of pay for instructing other custodians, level 2 and 3. The Union grieved this assignment claiming the instructing duties should have been assigned to a Level 3 Laborer-Custodian and that person should have been compensated at the Level 4 rate of pay. The Union's position was taken due to the fact that the task of training is found in the Level 4 Group Leader position and the task of instructing in this particular facility had always been performed by a Level 3 Laborer-Custodial.

The arbitrator ruled that the Position Descriptions for level 2 and 3 custodians contain no mention of instructional duties or responsibilities whatsoever. Only when a custodian becomes a level 4 Group Leader does the Position Description indicate that that the individual has the responsibility of instructing new employees. He went on with his analysis to state that since the higher level assignment was for longer than one week that the seniority provisions of Article 25 Section 4 applied to the selection of the Level 3 Laborer-Custodian that should have been selected for the higher level assignment. The arbitrator ruled that level 2 and 3 custodial employees who are temporarily detailed to instructional duties described in the Position Description for level 4 Group Leader should receive the level 4 rate of pay in accordance with the provisions of the National Agreement and the relevant Manuals.

Case Number: G98T-IG-C-00222132

For the Union: Charlie Robbins

Arbitrator: Stephen A. Dorshaw

Issue:

The Postal Service changed the schedule for maintenance employees and claimed that this temporary change of schedule was accomplished for training purposes. The Arbitrator found the employees were assigned outside their bid jobs, but they were not given any formal training. He granted each Grievant out-of-schedule pay adjusted for shift differential and/or any other benefits they received by virtue of the detail to the informal training.

The grievant's schedule, off days and/or tours, were changed to attend a training seminar presented by the Vendor of modified equipment. Due to a national modification (ICS) to mail processing equipment, a 4-hour information class was given by the contractor for ET's during the installation. This class was intended to give ET's an overview of the ICS System and how it works. The Union argued that this was not a recognized formal recognized training course as it was not planned, prepared or coordinated. The Postal Service did not provide the Union with information regarding the alleged course at Step 1, 2 or 3 of the grievance procedure.

The arbitrator sustained the Union's grievance. He found the training was not recognized training due to the Postal Service's failure to provide requested relevant documentation. The arbitrator stated, "The Arbitrator is compelled, under the circumstances, to reach one of two "negative inferences": first, either Management had all the required information from the beginning that would have demonstrated that this was "training" that qualified for the exception for out of schedule premium pay; or alternatively that the documentation concerning the nature of the training did not exist at the time that Mr. Gurrola requested it, but that it came into existence some time after the last of his several requests, but before arbitration.

The arbitrator awarded the grievants out-of-schedule premium for all hours attending this informal training.

The following is a summary of two maintenance arbitration awards that have significant value. Contact your National Maintenance Officers should you need a copy of these arbitration decisions

Case Number:    G98T-1G-C 00171151

For the Union:        Gary P. Hamrick

In this case the Postal Service reverted a vacant Preferred Duty Assignment and reposted it claiming an operational justification supported the change of off days. The Union contested the change under the provisions of its LMOU which required the Postal Service to consult with the Union prior to determining the basic work week for new positions. The arbitrator sustained the Union's grievance but would not restore the position to its original off days, nor did the arbitrator grant a monetary remedy to the employee that should have been awarded the position had it been posted with the original off days. The arbitrator ruled the Postal Service's operation justification supported the need to change the off days. He found that the Postal Service had presented a rational business reason for its action in setting the specific non scheduled work days for the position. It explained that the arrival of new processing equipment dictated that the equipment maintenance be performed on the weekend.

The Arbitrator did however render a unique monetary remedy for the demonstrated violation of non-compliance with the LMOU. In this regard the arbitrator found that a violation without a remedy is most likely to be repeated and the Union should not be placed in a position which requires it to arbitrate a contract violation without remedy. He found that an equitable remedy would require, at the very least that the Postal Service pay the cost to the Union of establishing its right. He then ruled the Postal Service was required to compensate the Union for all reasonable expenses of arbitrating this case. The expenses included costs of travel, transportation, lodging, food, and salary paid to the Union advocate for preparation and the hearing.

Case Number:    G98T-1G-C 00232802

For the Union:    Gary P. Hamrick

The Postal Service assigned level 3 Laborer-Custodians to modify carrier mail cases in lieu of Level 5 Maintenance Mechanics. The arbitrator ruled this assignment violated Article 7.2 of the National Agreement. He sustained the grievance and compensated the Level 5 Maintenance Mechanics overtime for the time spent by the Level 3 Laborer-Custodians performing work outside of their Standard Position Description.

The following NATIONAL LEVEL ARBITRATION AWARD is from the National Association of Rural Carriers. The award is abbreviated due to its length. I have tried to maintain sufficient information for you to acquire the value of the award. This award is presently not in the SEARCH system. Should you need a hard copy of the award, then please contact us.

In this case the Rural Carriers arbitrated the meaning of the "Review and Concurrence" for proposed disciplinary actions. While the language of the NRLCA's contract regarding the issuance of proposed discipline is somewhat different than the APWU's, it contains the same language and requirement for proposed discipline to be reviewed and concurred with by a higher level management official. The National Level arbitrator ruled that proposed disciplined that was not properly reviewed and concurred with by a higher level management official was procedurally deficient. The only remedy for this due process violation was expungement of the discipline with a "full" make whole remedy.

This is a significant award and should be relied upon to support grievances in which we have preserved the argument that the proposed disciplinary action lacked the proper review and concurrence.

NATIONAL ARBITRATION CASE

Case Number: E95R-4E-D 01027978

For the NRLCA: Peer & Gan, LLP by
Dennis D. Clark, Esq and Michael Gan, Esq

Arbitrator: Dana Edward Eischen

Subject: Review and Concurrence for Discipline

The record before the National Arbitrator in this case presents a fundamental conflict between the NRLCA and the United States Postal Service concerning the proper interpretation of the "review and concurrence" provision contained in Article 16, Section 6 of their National Agreement. It is not disputed that this review and concurrence language has been a fertile source of controversy over the last thirty (30) years, resulting in scores of decisions by area arbitrators interpreting and applying its provisions. The ostensible vehicle for bringing certain generic issue(s) concerning the interpretation and application of Article 16.6 to this National Arbitration, at this time, was a grievance concerning the removal of rural carrier Ms. Julie DeWitt, from the Buhl, Idaho post office. However, the DeWitt grievance, per se, is not before the National Arbitrator for decision in this proceeding.

ISSUES

Following Step 4 discussions of these Article 16.6 national interpretive issues between USPS
Labor Relations Specialist William Daigneault and NRLCA Director of Labor Relations Randy
Anderson, Mr. Daigneault denied the national interpretive grievance at Step 4, by letter of September 27, 2001, as follows:

Re: E95R-4E-D 01027978 3. DeWitt Buhl, ID 83316-9998

On several occasions, the most recent being September 14, 2001, 1 discussed with the Union the above-captioned grievance at the fourth step of our contractual grievance procedure.

The issue in this grievance concerns the interpretation of Article 16.6 of the National Agreement concerning review and concurrence of discipline.

It is the Union's position that a violation of Article 16.6, Review of Discipline has occurred in the following situations:

1. There is a command decision from higher authority that instructs the issuance of a suspension or discharge.
2. The decision by the in initiating official to suspend or discharge is reached jointly with the review and concurring official and was not an independent decision by the initiating official.
3. The initiating official or reviewing official failed to complete an independent substantive review of the evidence prior to the imposition of the suspension or discharge.
4. There is no evidence of written review and concurrence prior to the imposition of the
suspension or discharge.

It is the Union's position that a showing of harmful error in relation to review and concurrence is not required to sustain the Union's grievance on the discipline. The Union also contends that their position is "grounded in the language of Article 16.6 and the many arbitration awards between the USPS and NRLCA."

It is the position of the Postal Service that Article 16.6 restricts a supervisor, manager or postmaster from imposing a suspension or discharge upon an employee in the rural carrier bargaining unit without review and concurrence by a higher authority. It protects carriers from anew, inexperienced supervisor that intends to suspend or remove the carrier without just cause. It provides for a higher authority to review the situation (either review of paperwork, discussion with proposing official or general knowledge of the situation giving rise to the charges) to determine whether, on the surface, it appears that the action being proposed is appropriate.. It requires that the higher authority document his/her concurrence with the action being proposed in writing.

Article 16.6 does not require that the concurring official conduct an independent investigation It does not prohibit the concurring official from having previous knowledge of the charges, discussing the charges with the proposing official, being involved in the investigation with the proposing official or providing advice. It does not restrict management from having more than one concurring official.

hi the case at hand, the Union alleges Management violated Article 16.6 claiming the review and concurrence was nothing more than a "rubber stamp." The Union contends that the review and concurrence official did not review anything except the proposing official's request for discipline.

It is Management's position that the concurring officials in the case at hand went above and beyond the requirements of Article 16,6. While the contract only requires review and concurrence by one higher authority, several managers in higher authority reviewed the evidence submitted by the proposing official in this case. All the managers agreed the action being proposed was appropriate.

In the absence of any contractual violation, this grievance is denied. Time limits were extended by mutual consent.

At the arbitration hearing in this matter, each Party submitted its own specific statement of national interpretive issues regarding violations and compliance with Article 16.6, upon which it seeks a decision in this case. Additionally, they submitted by joint stipulation two other "issues of national significance", regarding appropriate remedies for proven violations of Article 16.6 and post-National Arbitration administration of the pending area arbitration cases, now held in abeyance. Rather than rewording the issues advanced by the Parties into some form of synthesized issues, I will address in this Opinion and Award the following joint and several interpretive concerns expressed by the Parties, respectively, in their Step 4 correspondence and at the arbitration hearing, viz.:

1) Is Article 16.6 Review of Discipline of the Extension to the 1995-1999 USPS-NRLCA National Agreement violated if:

a) The lower level supervisor consults, discusses, communicates with or jointly confers with the higher reviewing authority before deciding to propose discipline;

b) There is a "command decision" from higher authority to impose a suspension or discharge;

c) There is a joint decision by the initiating and reviewing officials to impose a suspension or discharge;

d) The higher level authority does not conduct an independent investigation and relies upon the record submitted by the supervisor when reviewing and concurring with the proposed discipline;

e) There is a failure of either the initiating or reviewing official to make an independent substantive review of the evidence prior to the imposition of a suspension or discharge;

f) There is no evidence of written review and concurrence prior to the imposition of a suspension or discharge.

2) Does a proven violation of Article 16.6 automatically sustain the grievance and overturn any discipline, absent a showing of "actual harm", i.e., "that the reviewing official would not have concurred with the proposing official and that the discipline would not have been issued in the first instance".

3) What should be done next with those pending Step 4 cases which have been held in abeyance for area arbitration, awaiting the outcome of this National Arbitration case?

OPINION OF THE NATIONAL ARBITRATOR

Bargaining History, Arbitral Authority and Mutual Intent

Certification of the instant case to Article 1 5.5.C National Arbitration marshaled the first occasion for a definitive resolution of the national interpretive issues presented, supra. However, the contract language under analysis in this case has been part of the collectively negotiated contracts between these parties for some thirty (30) years. Thus, a certain valuable perspective is gained by considering the bargaining history and administrative practice thereunder; especially since this very language has been so frequently interpreted and applied in final and binding decisions by scores of arbitrators in Article 15.5 area arbitration of removal cases.

Turning first to bargaining history, the language which now appears as Article 16.6 of the current USPS/NRLCA National Agreement is essentially unchanged, dating from the 1971-73 Joint Collective Bargaining Agreement. Following passage of the Postal Reorganization Act of 1970, the major craft unions representing postal employees bargained jointly with the Postal Service and entered into a joint collective bargaining agreement covering all crafts. Those unions covered by the first agreement included the NRLCA, as well as the APWU (then known as the United Federation of Postal Clerks), the NALC, the Mail Handlers (and three others which have since been absorbed by the mentioned unions).

Article 16, Section 5 of that seminal agreement provided:

SECTION 5. REVIEW OF Discipline. In no case may a supervisor impose suspension or discharge upon an employee unless the proposed disciplinary action by the supervisor has first been reviewed and concurred in by the installation head or his designee.

In associate post offices of twenty (20) or less employees, or where there is no higher level supervisor than the supervisor who proposes to initiate suspension or discharge, the proposed disciplinary action shall first be reviewed and concurred in by a higher authority outside such installation or post office before any proposed disciplinary action is taken.

Over the intervening years, these unions have sometimes bargained in coalitions of differing combinations and sometimes negotiated separate contracts with the Postal Service, but the review and concur language has remained virtually constant throughout.

As for the NRLCAIPosta1 Service contracts, since the original language of Article 16.6 was adopted by the Parties in the 1971-73 joint Collective Bargaining Agreement, the language was readopted unchanged in the successive agreements negotiated in 1973,1975, 1978,1981, 1984,1988, 1990, and 1993. In 1995, the NRLCA and the Postal Service amended the language of the first paragraph of Article 16.6 to provide as follows: (Emphasis in original, to denominate the changes.)

In no case may a suspension or discharge be imposed upon an employee unless the proposed disciplinary action has first been reviewed and concurred in by a higher authority. Such concurrence shall be in writing.

It is noted that the NRLCA and the Postal Service jointly prepare and publish an "Analysis of Changes" following renegotiation of their agreements. The 1995 Analysis stated with respect to the above changes in Article 16.6:

The first change clarifies the parties' position that discipline may be imposed by a manager other than the rural carrier's supervisor. The second change makes it clear that the concurring official need not be the installation head, provided the official is a higher authority, i.e., a higher organizational level or higher grade level. The third change requires that there be written evidence of such review and concurrence.

My focus in this case remains the language of Article 16.6 of the current Agreement, in a national interpretive context; with due regard for bargaining and Arbitral history concerning the interpretation and application of that language since 1971, to the extent such evidence assists in determining the mutual intent of the contracting parties. In that connection, from the inception of the first collective bargaining agreement in 1971 to date, a period spanning some 30 years and 11 separately negotiated agreements, the NRLCA and the Postal Service have permitted area arbitrators to interpret and apply the provisions of Article 16.6, without resort to National Arbitration. Indeed, over the last three decades, area arbitration decisions construing and applying the review and concur language of Article 16.6 have been stacking up like cordwood. [Parenthetically, area arbitrators in cases involving the other crafts likewise have consistently interpreted the meaning of the review and concurrence provision in the same manner].

It is worth reemphasizing that, notwithstanding the Postal Service's ostensible opposition to the interpretation and application of that language rendered by virtually all of the area arbitrators in these Article 15.5 .D removal cases, the substance of the "review and concur" language has been repeatedly readopted by the Parties, without material change, in every successive National Agreement since 1971-73. In short, during more than three decades of living with this language as interpreted and applied by the area arbitrators, with a remarkable degree of consistency, in nearly 100 decisions. In all that time, neither Party ever exercised its right to renegotiate the controlling language of Article 16.6. Nor, prior to the instant case, did either Party deem it necessary to submit the review and concurrence language of Article 16.6 for definitive interpretation in Article 15.5.C National Arbitration, as a certified "national interpretive issue

The Postal Service quite properly points out that, under the two-tier arbitration system adopted by these Parties, National Arbitration decisions govern in matters of national interpretations and the area arbitration decisions therefore are not authoritative precedent in this case. But just because National Arbitration decisions pre-empt area decisions in certified cases of national interpretation does not mean that thirty (30) years' worth of arbitration decisions by scores of prominent arbitrators, consistently construing and applying the language of Article 16.6 in area arbitration cases, are irrelevant, immaterial or unpersuasive in this National Arbitration case.

This National Arbitrator has the power and authority, as the contractual "Court of Last Resort", to interpret Article 16.6 in a manner other than as consistently and uniformly interpreted by scores of distinguished area arbitrators. It is manifest that Article 15.5 .C area arbitration decisions are not resjudicata, stare decisis, or in any sense dispositive, in Article 1 5.5.D National Arbitration. My responsibility to function as the designated National Arbitrator is not fulfilled simply by taking an opinion poi1 of area arbitrators.

But, in the absence of a National Arbitration decision interpreting a particular provision of the National Agreement, area arbitrators are regularly called upon to interpret and apply the various provisions of that Agreement, including Article 16.6. Area arbitrators have interpreted arid applied Article 16.6 for more than 20 years in scores of cases, because the Association and the Postal Service have permitted them to do so and there is no contractual prohibition on them doing so. Of course, the interpretation of Article 16.6 in this National Arbitration case will govern and apply in all future area arbitrations, because National Arbitration under the Agreement represents a ruling by the Parties~ designated "Supreme Court". On the other hand, in this particular case, most of those area arbitration decisions do in fact comport with my own interpretation of the language at issue in this case, based upon my independent analysis of the record before mc. Iii short, the great majority of those area arbitration decisions are correct and as the National Arbitrator I reach essentially the same conclusions concerning the meaning of the language of Article 16.6.

Area arbitration may not be the "Supreme Court" under the parties' Agreement, but it most certainly is the "Court of Appeals" and area arbitration decisions are as "final and binding" as National Arbitration awards. If either party disagrees with an interpretation of the Agreement made by one or more area arbitrators, it can initiate a national interpretive grievance at Step 4 and take it onto national arbitration, to obtain a "Supreme Court" ruling. Unless and until that occurs, however, the area arbitration decisions construing and applying Article 16.6 represented the "law" of the Parties. More importantly, in my considered judgment, those accumulated decisions also constitute persuasive evidence of the mutual intent of the contracting Parties.

Those area arbitrations have laid on a persuasive interpretive gloss to Article 16.6 over a period of thirty (30) years, during which the Parties jointly renegotiated the controlling National Agreement eleven (11) times, without even seeking, let alone achieving, any significant modification of the language of Article 16.6. When, as here, the area arbitration awards uniformly interpret a contract provision over a long period, and neither party seeks national arbitration or change in the contract language, but rather continually readopts the critical contract language time and time again in collective bargaining, it may well be concluded that the area Arbitral interpretation has been incorporated into the Agreement. Elkouri & Elkouri, How Arbitration Works (5th edition) (BNA 1997), states the governing principle of incorporation or adoption, at page 615:

ll]f the agreement is renegotiated without materially changing a provision that has been interpreted by arbitration, the parties may be held to have adopted the award as a part of the contract Indeed, the binding force of an award may even be strengthened by such renegotiation without change.

The Postal Service may be technically connect, as a matter of logic, that incorporation/re-adoption theory should not be dispositive, because none of the myriad arbitration decisions construing and applying Article 16.6 was in the National Arbitration forum. However, to argue that the adoption theory should not even be considered seems to me an elevation of form over substance in this particular factual record. In my considered judgment, the Arbitral gloss applied by the area arbitrators has in fact and in practice been largely accepted by both Parties and is reflective of their mutual understanding and intent concerning the interpretation and application of Article 16.6 in removal cases.

Issues No. 1(a)-(d): Article 16.6 Violation/Compliance

When the rhetorical excesses of ardent advocacy are stripped away, I do not perceive any meaningful disagreement between these Parties with the fundamental proposition that Article 16.6. requires two separate and independent managerial judgments, each based on substantive review of the record evidence, before a suspension or discharge disciplinary action may be imposed on an employee: the first by the initiating official who proposes discipline, and the second by a higher authority who must review and concur in the proposed discipline before it is imposed upon the employee.

It necessarily follows that the requirement of two separate and independent judgments, constitutes the very heart and core of Article 16.6, is violated when the reviewing/concurring official "commends" or "dictates" the disciplinary action to the proposing official, when the higher authority merely "rubber-stamps" the disciplinary action proposed by the employee's supervisor and/or when the sequential steps of a separate and independent supervisory initiation, followed by a separate and independent higher authority review/concurrence, are merged into a single consolidated joint decision by the two managers to suspend or discharge the employee.

Just as the area arbitration decisions rendered by a long line of prominent arbitrators have consistently held, I now hold that a violation of Article 16.6 occurs whenever: (1) the initiating official is deprived of freedom to make his own independent determination to discipline by a "command decision" dictated from higher authority to suspend or discharge; (2) the initiating and reviewing/concurring officials jointly make one consolidated disciplinary action decision, or (3) the higher authority does not review the record and consider all of the available evidence before concurring with the supervisor's proposed discipline. In each such instance, because there have not been two separate and independent judgments on discipline, the employee is deprived of the essential due process check and balance protection that Article 16.6 is intended to provide.

However, so long as the sine qua non of Article 16.6, separateness and independence of judgment in a two-stage process, is not violated by "command" decisions, joint decisions and/or "rubber-stamping", Article 16.6 does not bar the lower level supervisor from consulting, discussing, communicating with or jointly conferring with the higher reviewing authority before deciding to propose discipline. Indeed, it is common, and in many ways commendable and conducive to fulfillment of the intent of Article 16.6, for the lower level' authority to communicate with higher management and discuss policies, options, and other factors to be considered, before determining whether, and to what extent, to propose suspension or discharge of an employee. In short, so long as the initiating official retains independence of judgment and is not commanded by higher authority to issue the discipline, such communications for advice and counsel between the initiating official and a higher authority are to be encouraged rather than chilled or prohibited. The determining factor under Article 16.6 is not whether the officer in charge seeks advice and counsel outside his office but whether, once having obtained such information, the initiating official acts independently or surrenders that independence completely to the person from whom he has sought such advice. In the former case, Article 16.6 is not violated but, in the latter case, Article 16.6 is violated.

By the same token, it is not perse a violation of Article 16.6 when the higher level authority relies in the reviewing/concurring step upon the record considered by the lower level official in proposing the discipline. The higher authority is not required by Article 16.6 to make an "independent investigation". In my judgment, the requirements of Article 16.6 are met when the higher authority makes a substantive review of and bases the decision to concur on the record developed below.

Contrary to the position advanced by the Postal Service in this case, however, that process of review and concurrence contemplated by Article 16.6 is not a ministerial formality or a mere technical "laying on of hands" by the reviewing/concurring official. The requirement of a separate and independent second step of review and concurrence by the higher authority is not met by just a declaration of agreement with the first step supervisor's proposed disciplinary action. Compliance with Article 16.6 requires a substantive review of the matter by the higher authority in light of all the current information and the higher authority's concurrence with imposition of the disciplinary action proposed by the supervisor. Since the 1995 amendments, Article 16.6 specifies that this statement of concurrence by the higher authority must be set forth in writing.

Issue No. 1, supra , presents a subset of six (6) specific interrogatories concerning Article 16.6 compliance and violation, submitted by the Parties for determination in National Arbitration. Based on all of the foregoing, I conclude that Issues 1(a), and 1(d) are answered in the negative and Issues 1(b), 1(c), 1(e) and 1 (1) are answered in the affirmative.

Issue No. 2- - The Remedy for Proven Violations of Article 16.6

The 'operative language of Article 16.6 provides (emphasis added):

In no case may a suspension or discharge be imposed upon an employee unless the proposed disciplinary action has first been reviewed and concurred in by a higher authority.

This language clearly and unambiguously mandates that compliance with the two-step, two-stage process set forth. in Article 16.6 is a condition precedent to the imposition of a removal or suspension. Accordingly, I concur without equivocation with those many area arbitrators who have concluded that the substantive violations of Article 16.6 set forth in Issues 1(b), 1(c) and 1(e) invalidate the disciplinary action. Because these are substantive violations which effectively deny an employee the due process rights granted by Article 16.6, persuasive proof of such fatal violations requires Arbitral reversal of the improperly imposed suspension or discharge, without consideration of the underlying merits of the disciplinary action, i.e., reinstatement with "make whole" damages.

In my considered judgment, those relatively few area arbitration decisions which have engrafted onto the condition precedent language of Article 16.6 an additional requirement of proof of "actual harm", notwithstanding persuasive proof of a "command decision", a "joint decision" or that the reviewing/concurring official merely "rubber-stamped" the proposed disciplinary action, are just plain wrong. Under different contract language, arbitrators might properly overlook procedural defects in administration of discipline which do not unduly compromise the tights of an employee whose suspension or discharge is otherwise justified on the record. However, the precise terminology of Article 16.6 precludes recourse to that. "harmless error" argument. If this plain language of Article 16.6 occasionally produces a manifestly unfair result, as undoubtedly ii has in some cases, the proper recourse is renegotiation at the bargaining table, not Arbitral legislation of "actual harm" or "harmless error" rules which are at odds with the express wording of Article 16.6.

The only caveat I would add concerns the procedural violation described in Issue 1(0, i.e., failure of the Postal Service to produce evidence that the higher authority's concurrence was reduced to writing, as required by the 1995 amendment to Article 16.6. Such a failure to express concurrence in written form clearly is a procedural violation of Article 16.6, for which an Arbitral remedy might well be appropriate. But it is not so clear that such a violation, standing alone, would invalidate the disciplinary action and require reversal and reinstatement in every case.

The record in this matter is insufficiently developed to make an informed judgment concerning bargaining history and mutual intent regarding the 1995 amendment. The facts and circumstances of each particular case determine whether a procedural failure to concur in writing adversely impacted substantive Article 16.6 rights of an individual suspended or discharged employee. For these reasons, I refrain from making a definitive generic ruling on that single remedial aspect of the submitted issues at this time. Area arbitrators remain free to exercise their own best judgment as to whether, in the facts and circumstances of the individual case, an Issue 1(1) type of violation requires reversal of the disciplinary action or some other remedy. For Issue 1(b), 1(c) and 1(e) violations, however, Article 16.6 requires reversal of the disciplinary action and reinstatement with remedial "make-whole" damages.

AWARD OF THE NATIONAL ARBITRATOR
CASE NO. E95R-4E-D 01027978

Having been designated National Arbitrator in accordance with Article 15, Section ~.C of the National Agreement between the above-named parties, and having been duly sworn and having duly heard the proofs and allegations of the parties, I hereby AWARD as follows;

ISSUE NO.1

Article 16.6 Review of' Discipline of the Extension to the 1995-1999 USPS-NRLCA National Agreement:

a) Is not violated if the lower level supervisor consults, discusses, communicates with or jointly confers with the higher reviewing authority before deciding to propose discipline;

b) Is violated if there is a "command decision" from higher authority to impose a suspension or discharge;

c) Is violated if there is a joint decision by the initiating and reviewing officials to impose a suspension or discharge;

d) Is not violated if the higher level authority does not conduct an independent investigation and relies upon the record submitted by the supervisor when reviewing and concurring with the proposed discipline;

e) Is violated if there is a failure of either the initiating or reviewing official to make an independent substantive review of the evidence prior to the imposition of a suspension or discharge;

g) Is violated if there is no evidence of written review and concurrence prior to the imposition of a suspension or discharge.

ISSUE No.2

(a) Proven violations of Article 16.6 as set forth in issues 1(b), 1(c) or 1(e) are fatal. Such substantive violation invalidate the disciplinary action and require a remedy of reinstatement with "make-whole" damages.

(b) Whether a violation of Article 16.6 as set forth in Is sue 1(f) is fatal, invalidates the disciplinary action and requires a remedy of reinstatement with "make-whole" damages is for the area arbitrator to determine based on the facts and circumstances if the individual case.

ISSUE No.3

Case No. E95R-4E-D 01027978 and all other similar cases held in abeyance at Step 4, pending this National Arbitration interpretation of Article 16.6, are remanded to area arbitration, for priority scheduling consistent with Article 15, Section 5 .A of the National Agreement.

The following award is abbreviated due to its length. I have tried to maintain sufficient information for you to acquire the value of the award. This award is presently not in the SEARCH system. Should you need a hard copy of the award, then please contact us.

In this case the Postal Service subcontracted the fabrication and installation of fan guards on the air handling equipment. The arbitrator sustained the Union's grievance. In sustaining this grievance the arbitrator relied upon a Step 3 settlement which required local management to meet with the Union and discuss the impact the subcontracting may have upon the local workforce. The arbitrator ruled that the Postal Service's failure to meet and discuss the impact that the subcontracting may have upon the workforce violated the Agreement.

Regular Panel Arbitration

Case No: C90T-1C-C-95974118

Arbitrator: Michael E. Zobrak

For the Union: Gary Kloepfer

Award Summary

The Postal Service contracted out the fabrication and installation of air-handler guards at the Cincinnati BMC. No cost comparison was done. The Postal Service did not meet with the Union prior to contracting out the work as required by a Step 3 grievance Settlement. The Postal Service took the position that the employees did not have the necessary skills and that the required equipment was not available at the BMC. The failure to comply with the terms of the Step 3 Grievance Settlement, thereby failing to resolve outstanding issues, requires that the grievance be sustained. The Postal Service is directed to pay to the MPE Mechanics on the OTDL a total of 317 hours at the appropriate overtime rate, as requested by the Union at Step 2.

FACTUAL BACKGROUND

On July 26, 1993, the Postal Service entered into a contract with Terreri Construction to fabricate and install air-handler guards on heating and air conditioning units at the Cincinnati Bulk Mail Center (BMC). Following an OSHA safety inspection at the BMC, the Maintenance Engineering Specialist initiated a Facilities Service Request on August 13, 1993. The safety inspection had identified a potential safety hazard because the air-handler guards were open at the back and allowed a person access between the guard and the side wall. 'Terreri Constriction subcontracted with Rickety Welding and Fabrication to perform a major portion of the contracted work.

The decision to contract the work and not used bargaining employees from the BMC was not made at the local level, but came from the Allegheny Area office. Union officials at the local level were not notified in advance of the Postal Service's intent to contract out the disputed work. During the process of the work being contracted out, a Postal Inspection Service investigation of whether the work was being conducted in accordance with the contract issued to Terreri Construction was undertaken. The Union submitted information to the Postal Inspection Service indicating that the work was not performed in accordance with contract specifications.

The instant grievance was filed on or about June 20, 1995. William Cole, MPE-7 and Maintenance Craft Director, testified that the Tour 3 Steward approached him, reporting that he had witnessed a contractor welding sheet metal on to the air guards. Cole noted that the Union had not been notified of the contracting out of this work. In its grievance the Union took the position that MPE Mechanics on the Overtime Desired List (OTDL) could have performed the contracted out work and that management had not performed a cost comparison.

At the Step I grievance meeting the Union presented the Postal Service with a cost comparison indicating that even if MPE's were used on overtime, a labor cost savings of $12,839.81 would result by having on-site employees perform the work. It is Cole's recollection that at the Step I grievance meeting the Postal Service took the position that it did not have the equipment or qualified employees to perform this type of work.

The Union entered in the record a Step 3 grievance settlement between Union Representative, Jim Wheeler, and Management Representative, Luke Sheridan. That settlement, dated August 4, 1993, stated that "Prior to letting contracts out for maintenance related projects (such as upgrading of the fire alarm system), the local union will be included in a discussion as to the feasibility of using on-site Postal employees to perform the necessary tasks. This constitutes full and final settlement of this grievance."

According to Cole, he did not see the work in dispute until after it had been completed. In his estimation, the project involved cutting of sheet metal, as well as welding and bending the sheet metal. The sheet metal was tacked to the air guards. Cole noted that the Postal Service has at least five (5) portable welding machines that could have been used in the project and employees of the Postal Service at the BMC were qualified to operate the welders.

The Union also introduced copies of work orders that required its employees to weld and bend sheet metal. The bending was accomplished by using a brake and shears. Cole also testified that he had operated the brake, used to bend metal, since 1990. He claims to have cut sheet metal in cone shapes, as well as different angles, and put them on the brake. He did state, however, that he did not know if he could bend metal with using radii, nor does he know about making channels. He did point out that the contract issued for the work did not mention bending sheet metal or making channels.

William Bryant, MPE-7, did the cost comparison for the Union. Bryant claimed to have a background in construction and has worked as a carpenter along with sheet metal. Upon request of a Postal Service representative at a meeting on this grievance, Bryant examined the work performed by the contractor. He believes that the maintenance employees at the BMC had the equipment to cut, bend and weld the sheet metal. He further stated that he has performed fabrication work using the brake. Bryant pointed out that the contractors worked a total of 763 hours on the project, while he estimated that the Postal employees could have accomplished the job using 317 hours of labor.

Lee Roy Maxie, MPE-7 testified that he had considerable experience using the brake. Maxie believes that he could make all of the pieces necessary to complete the project, including making the required bends. In addition he is a qualified welder. He stated that he has made posts for the conveyor and parts for the bundle sorter on the B-1belt. Maxie stated that he can form small boxes by bending metal and that he has made replacement guards.

The Postal Service noted at the beginning of its case that several of its key witnesses were no longer employed and could not be compelled to testify. Richard Eckes, Maintenance Engineering Specialist, was the only witness to be called by the Postal Service. He issued the request for the modifications for safety purposes. He feared that an employee could touch the moving belts on the equipment. Eckes dealt with the Allegheny Area's Office. He also coordinated the times that the contractors were on site. He went over the scope of the work and what corrections he wanted done. Eckes further observed that the guards were difficult to remove and a two inch gap created a potential danger.

Eckes does not believe that the Postal Service at the BMC had the equipment necessary to complete the job. He observed that the BMC has equipment to bend sheet metal on a straight line; it does not have the equipment to bend sheet metal on a ninety-degree radius. He admits that he did not meet with the Union to discuss the project. He maintains that while the maintenance employees at the BMC do good work, they are not sufficiently familiar with OSHA regulations to assure that they would properly complete the task.

Under cross-examination Eckes agreed that the contract given Terreri does not mention 051-IA specifications. While the Postal Service was not fined for these unsafe conditions, it was compelled to correct the safety problems. Eckes agreed that some of the work could have been performed in-house. lie further recalled that BMC employees have made guards in the past.

UNION CONTENTIONS

The Union contends that the Postal Service violated the National Agreement when it improperly subcontracted the fabrication and installation of air-handler guards at the Cincinnati BMC. This particular instance of subcontracting was not carried out in accordance with the provisions of Article 32. In addition, subcontracting at a BMC requires additional considerations. Staffing guidelines and criteria require that the Postal Service have a sufficient number of employees available to allow for the in-house staffing of special projects, such as the fabrication and installation of guards on the air.. handlers. The staffing package at the Cincinnati BMC designates 26 maintenance employees who were needed to perform this type of work. Clearly the facility was staffed to accomplish this project. In fact, maintenance employees at this location have performed this type of work in the past. The Postal Service failed to perform a cost comparison of subcontracting versus the use of in-house labor. The in-house maintenance employees had the skills to perform the work in dispute. Only if the employees lacked the required skills could the work be subcontracted. If a clear cost advantage did not exist, then the contracting out could not be done. in this case the Postal Service did not perform a cost comparison before Step 2 of the grievance procedure was held. The Postal Service has failed to establish that there was a demonstrated economical advantage to subcontracting this work. In fact, the Postal Service failed to provide the Union with all requested relevant information at the lower steps of the grievance procedure so that the Union could determine if the Postal Service had proper cause for subcontracting. The Postal Service never provided any reasons for undertaking the subcontracting.
The Postal Service failed to provide testimony from anyone associated with the Area office who could explain the factors used in reaching the determination to subcontract. The failure to provide such information is a violation of the full-disclosure provisions of Article 15 prejudiced the Union's case. No consideration should be given to any such arguments. Eckes, the Postal Service's only witness, did not participate at any step of the grievance procedure. His testimony must be viewed as being self-serving. There is no evidence that the Area or Eckes ever considered the issue of employee qualification. In addition, the Postal Service did not present cost data for a determination on the economics of decision to subcontract. Certainly no such information was presented by the Postal Service in a timely manner and any such evidence presented at the hearing cannot be given any consideration.
The Union, on the other hand, has shown that there were qualified employees available to perform this work. The Union requests that the grievance be sustained and seeks payment to employees on the overtime desired list at the overtime rate of pay for all hours worked by the contractor.2

POSTAL SERVICE CONTENTIONS

The Postal Service takes the position that it properly contracted out the work in dispute. It learned of OSHA violations following an Allegheny Area Safety Inspection. The Area maintained responsibility for the corrections of the violations. It was not an issue for local management to handle and it was not a budget or work item for the BMC. The National Agreement gives the Postal Service the right to contract out maintenance work at the BMC. In this case management faced the need to correct a safety problem. It has often contracted out work at the BMC. There are a myriad of maintenance-related services for which the Postal Service contracts out. New ground was not broken in this instance. The Postal Service complied with its contractual obligations under Article 32. It did give full consideration to the five factors cited therein. The Union has no evidence that the five factors were not properly considered. Fabricating and placing guards around air-handlers is a National Level Maintenance Craft issue. The work done at the Cincinnati BMC had no impact on the National Level. The Union only asked for information related to dollars. It is evident that the Union is only interested in obtaining more dollars for its members. The Union fails to consider the public interest, efficiency of operations or the availability of equipment. The Union has not shown that use of the independent contractor was not cost effective.
All MPE's were fully employed during the period of the contracting out. The majority of the MPE's worked some overtime during that same period. Employees have no guarantee of overtime under Article 32. Contracting out allows the regular workforce to concentrate on their regular duties and to be ready for regular overtime assignments. The ninety air-handlers need an immediate safety correction. The MPE staffing was 16 persons short at that time. The Postal Service seeks denial of the grievance.

DISCUSSION AND FINDINGS

The disputed work was undertaken after a safety inspection revealed OSHA violations related to guards placed around air-handlers. It was determined that the existing guards did not offer the full measure of protection required by QSHA to fully assure employees safety. In order to correct the safety hazard, new guards needed to be fabricated and installed. The process required the ability to cut and bend sheet metal into shapes and angles to close the existing gaps on the guards. Having toured a portion of the project area on three occasions during the two days of hearing, the extent of the project appeared to be rather straightforward. The major focus of this dispute is whether the Postal Service had the equipment necessary to bend the sheet metal of the designated radii.
While this project took place at a BMC, there is no evidence that it falls under the "Special Projects Staffing" provision of the Interim Bulk Mail Center Maintenance Staffing Guidelines and Criteria. This provision does encompass special projects such as equipment modifications. The cited provision covers the Bulk Mail System, not an air handling system that has no direct relationship to the operation of the Bulk Mail System.
The matter is governed by the provisions of Article 32, Subcontracting. That provision requires the consideration of five criteria when evaluating the need to subcontract. Before subcontracting is undertaken due consideration must be given to public interest, cost, efficiency, availability of equipment and the qualification of employees. In its Step 2 and Step 3 grievance responses the Postal Service took the position that there were no qualified employees to perform the work and that the necessary equipment was not available at the BMC. The Postal Service, at Step 3, further maintained that the contracting out had no significant impact on the bargaining unit's work. in particular, the Postal Service contended that the brake utilized at the BMC could not bend the metal in the required configuration. The Postal Service did not claim that any other criteria applied to its decision to subcontract.
The Postal Service did not claim that it would be more cost efficient to subcontract the work in question. In fact, no cost comparison was conducted by the Postal Service prior to making the decision to subcontract. The Postal Service has not challenged the Union's cost comparison that bargaining unit maintenance employees working on overtime could have performed the labor on the disputed work at a savings of $12,839.81 over the labor costs of the contractor. While not determinative of this issue, it should also be noted that the Union's review of materials costs revealed a significant difference in material costs between what was bid by the contractor and materials that the Union maintained could be purchased.
The Union submitted numerous work orders indicating that bargaining unit members at the BMC have been assigned to perform similar work on many occasions. That work has included fabrication, repair and welding of guards, as well as similar projects. The Postal Service did not offer testimony as to how these projects may have differed from the disputed work in this case. Lacking any contradiction of the work orders presented by the Union, it must be concluded that the bargaining unit employees at the BMC were qualified to perform the disputed work.

The second basis for denying the grievance is the Postal Service's claim that the equipment needed to perform the job was not available. The work orders presented by the Union indicate that bargaining unit employees have been assigned to perform welding. Union witnesses pointed out that they have been trained in welding techniques and that there are welders available at the BMC to perform the work. Of critical importance to the determination of this case is the matter of the ability of the brake to bend the sheet metal in accordance with the specified radii.

A review of the testimony presented at this hearing indicates a claim by the Union that its employees have cut and bent metal in a manner similar to the way the subcontractor cut and shaped metal. Eckes, however, testified that the BMC did not have the equipment available to bend the sheet metal on a 90-degree radius. He stated that the brake could only make a straight bend, not the curved bends required here. The Union points out that Eckes did not participate at Steps I or 2 of the grievance procedure and he should not now be permitted to advance his claims that lack of equipment and skills to properly bend the material required the contracting out of this work. His opinions were not raised in a timely fashion and are merely generic statements.

A review of the Postal Service's Step 2 answer reveals that the Postal Service took the position that the necessary equipment was not available since the brake utilized at the BMC will not bend metal in the required configurations. In light of this answer, the testimony given by Eckes cannot be labeled as new argument. His testimony was consistent with the position clearly enunciated by the Postal Service in its Step 2 answer. As such it became the Union's responsibility to establish to show that it did have the necessary equipment available to bend metal using the brake in the required configurations.

While Cole testified that he has used the brake and shear and that he has cut sheet metal in a cone shape and placed it in the brake, under cross-examination he stated that he did not know if he could shape the sheet metal to the stated radii. Maxie, on the other hand, testified that he could have easily performed the bends. He then cited various projects he has worked on.

The issue of whether the BMC had the necessary equipment available is exactly the type of issue that could have been resolved had the August 4, 1993 Step Three Grievance Settlement been followed. That settlement called for the local Union to be involved in discussions as to the feasibility of using on-site Postal employees to perform the necessary tasks. That settlement was binding on the parties and is controlling in this dispute. The Postal Service failed to employ the terms of this settlement and, instead, unilaterally undertook without any discussion with the local Union that could have resolved the issue of if the required equipment was available at the BMC.
The failure of the Postal Service to comply with the Step Three Grievance Settlement demands that the issue of if the BMC had the necessary equipment to perform the required work must be resolved in favor of the Union. The final and binding Step Three Grievance Settlement set forth terms that must be followed at the BMC before contracting out is undertaken. Had they been followed, this dispute could have been resolved or, at the very least, sufficient information could have been developed to clearly and unequivocally determine if the necessary equipment was available at the BMC.

Based on the foregoing, it is found that the disputed subcontracting at the BMC related to the fabrication and installation of guards on the air-handlers must be resolved in favor of the Union. The Postal Service is directed to pay to the MPE Mechanics on the OTDL a total of 317 hours at the appropriate overtime rate, as requested by the Union at Step 2.

The following NATIONAL LEVEL award is abbreviated due to its length. I have tried to maintain sufficient information for you to acquire the value of the award. This award is presently not in the SEARCH system. Should you need a hard copy of the award, then please contact us.

In this case, the Clerk Craft grieved that Article 7 Section 2 prohibits management from making "intracraft" assignments. The Union argued that this case should be decided on the facts and that the issue, intracraft assignments, was not an interpretive issue. The Union sought application of Arbitrator Cushman's earlier award to the facts at hand. The arbitrator disagreed with the Union and ordered a hearing on the interpretive issue.

National Arbitration Panel - (Interim Award)

Case No. C90C-1CC-93018526

Arbitrator: Shyam Das

For the Union: Arthur M. Luby, Esquire

Award Summary

The issue of whether Article 7.2 applies to, and is violated by, intra-craft cross-wage level assignments such as those involved in this grievance is arbitrable at the National level.

BACKGROUND

On August 16, 1992, the Union filed a class action grievance in Lehigh Valley, Pennsylvania. The basis for the grievance is set forth in the Step 2 appeal form as follows:

During the period May 29, 1992 - June 5, 1992, management used 23 different level 5/6 clerks to perform duties in level 4, in the automation area of the facility. These 23 clerks accounted for a total of 246 hours of work performed in lieu of level 4 clerks.

The Collective Bargaining Agreement (CBA) provides no language for such crossing of wage levels. Article 7.2.B provides for such crossing of occupational groups if in the same wage level. This assignment clearly violates the CB~ since it is to circumvent the assignment of overtime work to the level four clerks and the posting of bid positions to the clerk craft.

These assignments are being made not because of light workload in the level 5/6 areas, since most of these clerks are removed from their primary job areas and that mail then sits. Management must compensate the level 4 clerks at the appropriate overtime rate to include penalty overtime for all hours worked by the level 5/6 clerks.

The grievance was appealed to Step 3 without a Step 2 decision. The Step 3 appeal notes: "The parties have agreed that this grievance would be the representative case and that no further grievances must be filed." After discussion at Step 3, the Postal Service issued a decision on April 25, 1993 stating:

The matters presented by the union concerning this grievance, as well as the applicable contractual provisions, have been reviewed and given careful consideration.

The union's Representative's oral argument and submitted documentation were considered, but were not sufficiently persuasive to alter local management's position. Therefore, the corrective action requested by the union is not granted.

It was mutually agreed that this grievance does not involve any interpretive issue(s) pertaining to the National Agreement or any supplement thereto which may be of general application....

The grievance then was appealed to regional arbitration, at which level the Postal Service declared it raised an interpretive issue and sent the case to Step 4 in November 1993.

On December 10, 1993 the Union appealed the grievance to Step 4. This appeal identified the applicable contract provision as Article 7.2 and the issue as "Crossing Wage Levels". There was no Step 4 meeting. On May 9, 1994, the Union appealed the case to National Arbitration, again identifying the applicable contract provision as Article 7.2.

At the arbitration hearing on July 11, 2002, the Union took the position that this grievance does not raise a legitimate national interpretive issue and should be remanded to the region. The Postal Service disagreed. The parties agreed to bifurcation to permit an initial determination to be made as to whether this grievance raises an interpretive issue properly to be resolved at National Arbitration, and, if so, what that issue is.

UNION POSITION

The Union contends that this dispute does not raise a legitimate national interpretive issue. The Union has made clear its position that Article 7 precludes the Postal Service from assigning employees to work in a different wage level based on insufficient work at their level. The Union asserts that its position is based on the direct contractual language in Article 7.2 and is supported by a May 15, 1992 regional arbitration decision by Arbitrator Bernard Cushman in Case No. E7C-2E-C 48567 ("Cushman Award") and other regional awards. The Postal Service, however, has never provided any account of its competing theory as to how and when the contract allows for assignment of craft employees across wage levels and whether insufficient work constitutes such a circumstance. Thus, the U9ion argues, there is no competing interpretive position which is the bare minimum required to establish a legitimate interpretive issue ripe for National Arbitration.

The Union maintains that the Postal Service's assertion at arbitration that its position is that it has the right to assign level 5 and 6 clerks to level 4 work and that there is nothing in the contract that prevents it from doing so, is not meaningful. The Union insists that the contract requires, as a premise to National Arbitration, an explanation of the Postal Service' s refusal to grant the grievance beyond asserting "because we say so". The Postal Service, in the Union's view, must articulate some alternative' theory of the meaning of the explicit language in Article 7 on which the Union relies.

Accordingly, the Union contends that this dispute should be referred back to the region. If the Arbitrator concludes it is inappropriate to do that, the Union requests that he define the issue in dispute so that the parties may develop relevant evidence. In the event the Arbitrator takes the latter course, the Union points out that it has not taken the position that the Postal Service never can assign employees across wage levels. Its position is that the only issue presented in this grievance is whether insufficient work is a justifiable basis for assignment across wage levels.

POSTAL SERVICE POSITION

The Postal Service insists that there is an interpretive issue to be decided in this case. The grievance protests the assignment of level 5 and 6 clerks to perform level 4 work, stating that:

The Collective Bargaining Agreement (CBA) provides no language for such crossing of wage levels. Article 7.2.B provides for such crossing of occupational groups if in' the same wage level.

The Postal Service takes the position that Article 7.2.B does not prohibit such work assignments unless they are cross-craft assignments. In its view, the~J.an912age in Article 7.2 applies only to work in different crafts. This disagreement as to the meaning of contract language raises an interpretive issue within the scope of National Arbitration.

The Postal Service stresses that the question of what the contract means is not restricted to an analysis of Article 7.2. In particular -- in addition to Article 3 -- Article 25.2 and provisions of the Employee and Labor Relations Manual (ELM) providing for payment of employees in various combinations of jobs are implicated.

The Postal Service asserts that there is no evidence in the record to confirm that insufficient work was the rationale Lehigh Valley management used to shift higher level clerks to lower level work. Even if there were, it insists, the Cushman Award and similar regional decisions do not defeat the Postal Service's claim that there is an interpretive, issue to be decided at National Arbitration. There are regional awards that reach contrary conclusions, and, more importantly, the issue has not been resolved at the National level. Indeed, the Postal Service maintains, the real interpretive issue raised by the Postal Service in this case is whether Arbitrator Cushman's interpretation that intra-craft assignments are within the purview of Article 7 is correct.

The Postal Service points out that in 2000 contract negotiations the Postal Service presented a proposal that the parties clarify that the language in Article 7.2 applies only to work in different crafts, noting that the Union's position to the contrary was in conflict with Article 25, and that the issue was pending National Arbitration. The Union raised no questions regarding this proposal. Moreover, on April 22, 2002 representatives of the Postal Service and the Union entered into an agreement covering a substantial number of other grievances then pending at the National level, which they identified as being similar to the present case. That agreement provides:

The issue in these grievances is whether Article 7.2 is violated when members of the clerk craft are assigned work in different pay levels.

During our discussion, we identified these cases as being similar to Case No. C9OC-1C-C 93018526, which is currently scheduled for arbitration at the national level. Accordingly, we agreed to remand these cases to the parties at Step 3 to be held in abeyance for possible application of any settlement or arbitration award in Case No. C9OC-1C-C- 93018526.

This shows, the Postal Service argues, that the Union understood what the issue was in this case, and reflects the importance of this issue in terms of its general applicability.

FINDINGS

The record in this case is somewhat meager with respect to detailed statements of the parties' respective contractual positions. Yet, the record also reflects that the 'parties seemed to have agreed that this case raises a contractual interpretation issue, and that they had a basic understanding of the nature of their dispute. Otherwise, it is difficult to make sense of their agreements at both the regional and National level to treat this grievance as a representative or lead case.

As initially filed, the grievance does not so much assert a violation of Article 7.2 of the National Agreement as.. claim that the intracraft crossing of wage levels that occurred ~.n this case is not justified by Article 7.2., The grievance further asserts that management's action in this case deprived the affected level 4 clerks of overtime opportunities and circumvented the posting of bid positions to the clerk craft.

Prior to arbitration, the Postal Service did not actually state its position on the record other than to assert at Step 3 that local management was not persuaded by the Union's "oral argument and submitted documentation". The grievance record does not establish that management sought to justify its action on the basis of insufficient work at the higher job levels.
The burden, of course, is on the Union to establish that the Postal Service violated a provision or provisions of the National Agreement by making the disputed assignments. In its appeal to Step 4 and its appeal to National Arbitration the Union cited Article 7.2. At National Arbitration, moreover, the Union asserted that its position that the Postal Service violated the National Agreement in this case is supported by the direct language of Article 7.2 and by the Cushman Award and other similar regional arbitration decisions.

In the case before Arbitrator Cushman the parties stipulated the issue to be:

Did Management violate the express provisions of Article 7, Section 2 of the Collective Bargaining Agreement on November 10, 1990 and November 15, 1990 when they assigned Level 6 Distribution Clerk-Machine, MPLSM Operators and Level 5 Distribution Clerks to the OCR/BCS area to perform the duties of Level 4 Mail Processor? If so, what shall the remedy be?

In his decision, Arbitrator Cushman stated:

Article 3 of the Agreement, the management rights clause, does afford the Postal Service the right to assign employees but that right is subject to the provisions of the Agreement. The question to be decided is whether Article 7, Sections 2.B and C do restrict the management right to assign so as to preclude the assignments here in dispute.

Arbitrator Cushman went on to reject the Postal Service's position that intra-craft assignments are not within the purview of Article 7. He held that they were. He also rejected the Postal Service's position that even if Article 7 applies, the cross-wage assignments in issue involved a heavy workload/light workload situation and therefore met the criteria contained in Article 7.2.B and C. Arbitrator Cushman concluded:

That contention is without merit. Even where the heavy/light workload criteria of B and C are met as a factual matter there is another express requirement in that the work assigned must be in the same wage level.

In his Award, Arbitrator Cushman stated:

The Postal Service violated Articles [sic] 7 Section 2 of the Agreement on November 10, 1990 and November 15, 1990 when they assigned Level 6 Distribution Clerks-Machine MPLSM Operators and Level 5 Distribution Clerks to the OCR/BCS areas to perform the duties of Level 4 Mail Processor.

In this case, the Postal Service has made clear its view that the finding in the Cushman Award and other similar regional awards that Article 7.2 applies to intra-craft assignments is wrong. As stated at National Arbitration, its position is that, particularly when read in context of other relevant provisions of the National Agreement -- including Articles 3 and 25.2 - -and the ELM, Article 7.2 does not apply to such assignments.

The issue of whether Article 7.2 is violated when clerks in one pay level are assigned to Clerk work in a different pay level also has arisen in other cases that have been brought to Step 4, and the parties have agreed to "remand these cases to the parties at Step 3 to be held in abeyance for possible application of any settlement or arbitration award in [the present case]".

In Case No. HOC-3D-D 8598 (1994), Arbitrator Snow stated:

It is well settled in the relationship between the parties that an interpretive issue exists when the parties differ regarding the meaning of their agreement, rather than merely disagreeing about facts relevant to resolving a dispute. (See, Case No. H4C-3WC 28547, p. 22). This, of course, does not mean that factual issues cannot exist in disputes that involve interpretive issues.

In this case, the Postal Service's position is that Article 7.2 does not apply to intra-craft assignments. The Union clearly disagrees, although it also says it is not taking the position that management never can assign employees across wage levels. Its position appears to be that management must justify an assignment across wage levels, and that Article 7.2 does not permit it to do so on the basis of insufficient work.

Under all of these circumstances, I find that this grievance does raise an interpretive issue of general application for purposes of Article 15.4.D.1 of the 1990-1994 National Agreement That issue is whether Article 7.2 applies to, and is violated by, intra-craft cross-wage level assignments such as those involved in this grievance.

It may be that the parties have not yet fully fleshed out how they arrive at their "competing definitions" of the meaning of the relevant contractual language, but the issue has been sufficiently defined to permit the parties to present their respective positions in arbitration. Returning this case to the regional level, in my opinion, would not serve the mutual interests of the parties. In view of the lack of a Step 4 meeting, however, I encourage the parties' advocates, to meet prior to resumption of the hearing in this case to discuss their~ respective presentations.

AWARD

The issue of whether Article 7.2 applies to, and is violated by, intracraft cross-wage level assignments such as those involved in this grievance is arbitrable at the National level.