REGULAR ARBITRATION PANEL In the Matter of the Arbitration

) ) between ) ) UNITED STATES POSTAL SERVICE ) ) and ) ) AMERICAN POSTAL WORKERS ) UN ION, AFL· CIO ) )

BE FORE:

Grievant: Class Action Post Offi ce: Oakland, CA USPS Case No ; F06C·I F·C 09191444 APWU Case No: C L· 09 5· 09

Katherine J. Thomson, Arbitrator

APP EARANCES : For the U.S. Postal Service:

Tom Cloonan

For the Union:

Fredric Jacobs

Place of Hearing;

Oakland P&DC

Date of Hearing:

3/1 7,4/27·28,7/14 and 1 III0/201 1 8/7 -8 and 9/1 1/201 2

Date of Award;

November 17, 20 12

Relevant Contract Provision;

Articles 1,3,7,8,12, 15,17,19,31, 37

Contract Year:

2006-1 0

Typeof Grievance:

Contract Award Summary:

The Agency violated Article 12.5.B.5 of the collective bargaining agreement when it excessed approximately 38 full-time clerk craft employees from the Oakland installation in Spring 2009, without giving them 60 days' notice of the place of reassigmnent. As stipulated by the parties, the Arbitrator remands the remedy issue to the parties. If the parties are unable to agree on a remedy within 30 days, the parties may invoke the

Arbitrator's jurisdiction to decide the remedy.

c:~ f A (l

-

This arbitration involves a Class Action grievance. It arises pursuant to the agreement between the United States Postal Service, hereinafter the "Agency" or "Postal Service," and the American Postal Workers Union, AFL-CIO, hereinafter the "Union," under which KATHERINE J. THOMSON was selected as Arbitrator pursuant to Section 15 of the contract between the parties, and under which this award is fina l and binding on the parties. An evidentiary hearing, during which the parties had full opportunity to call witnesses and present evidence and argumen t, was held in Oakland, California, on March 17, April 27-28, July 14, and November 10,201 1, and August 7·8 and September II, 2012. Witnesses were sworn. The parties did not have a transcript of the proceeding prepared. The record was closed on October 19, 2012, post-hearing briefs having been received by the Arbitrator as of that date. and the matter was submitted for decision. The parties stipulated that the matter was properly before the Arbitrato r, time-lines having been met or waived. The part ies agreed to bifurcate the hearing on remedy, if any, until after a decision had been made on the merits. They further stipu lated that , if a contractual violation is found, the Arbitrator is to remand the remedy issue to the parties . If the parties are unable to agree on a remedy, the Arbitrator will have j urisd iction to decide the remedy. If the Arbitrator decides the remedy, the Arbitrator will retain jurisdiction over the award for a period of six months for purposes of resolving any dispu te over the remedy, but not to reconsider the merits of the decisio n, which is fina l. ISSUE The parties stipu lated at the hearing to the statement of the issue to be determined: Did Manageme nt violate Articles I , 3, 7, 8, 12, 15, 17, 19, 31 and 37 of the collective bargaining agreement when it excessed 51 full-time clerk craft emp loyees from the clerk craft and! or the Oakl and P&DC in spring 2009? If so what is the appropriate remedy?

2

FACTUAL SUMMARY In early 2008. the Postal Service determined that it would need to excess up to I 10 employees from the Oak land installation. Th is determination was based on the number of clerk position s, declin ing mail volume beginning in 200 6 thr oughou t fiscal year 2008, and a projection of continuin g decline in mail vo lume from increased internet use and the faltering economy. Seni or Plant Manager Ric Blancas testifi ed that he could no longer manage the dwindling clerk work load through attrition. He calculated how many employees he needed on each operation, including necessary annual and sick leave

relief. On May 2 1, 2008, the Pacific Area Human Resources office sent a letter to the Western Regional Coo rdinator, Omar Gonzal es, concern ing the need to exce ss due to declining mail volume and autom ation enhancements. (Jt. Ex. 8-A I) There was hearsay testimony that Gonzalez did not receive the letter in May, and that he was not updated about changing data, but Gonzalez never testified. Blancas ' unrebutted testimony was that he met with Gonzalez and Local Union President Fred Jacobs in the late summer of 2008. Postal Service representatives then began meeting with local Union representatives in September 200&, concern ing the excess ing. Employee retirem ents, resignations and removals reduced the number of impacted employees. On September 12, 2008 , the Postal Service sent affected employees a letter stating that they would be excessed on January 3D, 2009 . The letter explained some of the seniority and retreat rights of excessed employees. It also explained that employees could elect to become Part-Time Regular employees and stay at the insta llation, but would not be immune from anothe r excessing event. (Jt. Ex. &-HH) It became clear to the parties that information from the Area necessary to implement the excessing event wou ld not be available in time to implement the excessing in January. Blaneas testified that local Management still had not received from the Pacific Area the list of withheld posi tions for the affected employees to exercise preference rights on before January 2009. On January 23, 2009, the employees were sent a letter

retracting the January 30 date, but not setting a new date. (Jt. Ex. 8-00)

3

In late January, th e Area sent the list of withheld posi tions within the Oakland installation to which employees could be excessed. Stand-up talks were he ld on February 4 and 6 to explain the process of submitting emp loyee preferences on avai lable jobs. On February 9, 2009, the Postal Service sent another letter ask ing affe cted employees to indicate their preference on withheld city carrier assignm ents within the Oak land installation. (Agency Ex . 13) As a result, 13 emp loyees were excessed to the carrier craft within the Oak land installation effective February 28, 2009. They wer e inform ed of their reassignments by letter of February 20. [Jt. Ex. 8-11) On approximately February 21, the Agency put together its final list of positions available in other installations for excessed emp loyees. (Ag. Ex. 3 1) When the results of within- install ation excessing were known, the Postal Service sent another letter on February 26 to the remaining 38 impacted employees, allowing th em to com plete preference sheets on withheld jobs in other installations. They we re given a deadline of March 6. (Jt. Ex . 8·01) Also on some unidentified date, senior employees were notified of the option to transfer to assignments in San Jose, Sacramento, and other locations, in an effort to minimize the number of involuntary reassignments. Th e deadline for volunteering to tr ans fer was March 6. (Ag. Ex. 15) Management and Unio n employees met to determine how the emp loyees would be reassigned. Those employees who did not receive a position for which they had indicated a preference had to be put into a position. Eligibility for driving duties and medical restrictions had to be considered. On approximately April 14, 2009, most of the affected employees rece ived letters informing them whe re th ey would be reassigned effect ive Apri l 25, 2008. Most were directed to report on Apri l 25, the-beginning of a new pay pe riod, to the new assigrunent. (Ag. Ex. 33) Approx imately 10 employees did not receive their ass ignments or reporting instructions on April 14, 2009. (Ag . Ex. 19)

By Apri l 20, 20 08, a1138 affected emp loyees had received letters explaining when and where they sho uld report. In several cases, they had fewe r than 11 days' notice of the

4

new report ing location. Blancas test ified that the time was short because the Area had set a date for moving all the employees. He did not recall the basis for that date . Approximately 10 employees were excessed sufficiently far away that they were entitled to relocation benefits. Ellen Loose , Finance Manager for the Bay Valley District, was assigned to help employees with relocatio n issues and benefits. The actual

disbursement of benefits was hand led by a private relocation company, CARTUS. Soon after the ex cessi ng, the Agency realigned employees from Tour 2 to the other tours and then began a second excessing event due to lower workload. Because there were 94 retirements between March 28 and October 2009 (Ag. Ex . 1), no employees were in fact excessed out of the plant the second time . The Union made various allegations concerning this excessing event, as discussed

below. Violations of Article 12

Failure 10 Meet with the Union at Regional Level - Art. 12.B.4 While there was evidence of meetings at the local level, there was evidence of only one meeting w ith the Union at the Regional level.

Failure to Remove Casuals - Art. 12.4.D T he Union notified management of four casual employees stilI working 40 hours a week in associated offices in February 2009. Union Clerk Craft Director Manzo testified, and grievance documents show, that management did not justify their continued use. Form 50s show one was separated on February 28; one casual clerk was terminated

from the Piedmont office on March 5, 2009. (Ag. Ex. 5) One was removed from theCivic Center office on March 7, and another on March 13, 2009. (Jt. Ex. 8-K) A Form 50 shows casual employee Sung. was terminated on Apri l 25, 2009. (Ag. Ex. 5) Manzo acknowledged on cross-examination that clock rings she received

5

approximately 60 days after the excessing event showed that there wereno casual employees left in the installation. Failure to Return Limited and Light Duty Employees to thei r Craft-JCIM Art.

12.5.B

On March 18, 2009. Management was notified by a memorandum from registry clerk Robert Moore that mail handler McBride was still performing clerk work inthe registry unit from February 28 through March 6. (Jt. Ex. 8-Nl) Moore testified he saw

McBride daily opening sacks and working at the table, the same as the clerks. On March 11,2009, Manzo notified Management that mail handler Dillahunty

was being used in the Express Mail unit; mail handler Jacobs was assigned as an expediter in the manual unit; carrier Martin was working clerk duties at Piedmont fora week, and mail handler McCuller was still working as a mail conditioner reporter. (11. Ex. 8-N9) Manzo testified she had seen each of these employees working as clerks. Manzo acknowledged that mail handlers also claim the mail conditioner reporting work. Limited duty job offers for Dillahunty, Tookes and Gibson were in evidence, but they expired in 2006, and there Was no evidence that they were renewed. (J1. Ex. 8-N6·8) Manzo was notifi ed by Robert Jeffery on March 17,2009 that limited duty

carriers Chen, La. Anderson, Gassay, and Zhang were performing clerk duties in the West Grand Annex, Piedmont Station, Eastmont Station and Civic Center Annex. Jeffrey did not testify.

Clerk Mark Haden testified that he was told by Supervisor Chung Louie on February 27, 2009, that the large number of limited duty employees was causing the

excessing because they were clocking in as clerks, but not performing the work. Louie did not testify. and there was no evidence of the clock rings of limited and light duty employees.

6

Failure to Offer Meaningful Volunteer- in-lieu Option Manzo testified that the Agency failed to offer senior employees the option to transfer sufficiently in advance of the deadline. As a result only four senior employees volunteered for tran sfer. (Ag. Ex. 32) If more had been able to volunteer, fewer employees would have been excessed. No senior employees testified that they would have volunteered if the y had been given more time to decide. Failure to Notify Local Union Presidents Manzo testified that the local union president in San Jose, Ed Peralta, was never told about the emp loyees bei ng excessed to his installation. Peralta did not testify. Short Notice to Afficted Employees - Art. 12.5.8. 5 It is und isputed that emp loyees received no more than 11 days' notice of their reassigrunent location. Several eligible employees testified that they were given so little notice of their reassignments that they were unable to take advantage of relocation benefits. Loose and Complement Coordinator Yolanda Garcia met with employees who

were eligible forrelocation counseling on April 21, five or six days before most of the employees were scheduled to report to their new assigrunent. The emp loyees received a publication describing their relocation benefits (Un. Ex. 7). Two emp loyees did not come to the meeting. One of those. Carriage, had decided to convert to part-time regular status

instead of relocating. Employees were given CARTUS ' toll-free number to call. Loose gave the eligible emp loyees her cell phone in case they were having difficulty getting

benefits from CARTUS. Failure to Prov ide Relocati on Benefi ts Eligible employees were given a publication entitled "Bargaining Relocation Benefits:' In general, the y may claim advance trip trave l time of up to 10 days for the purpose of finding a new residence before the date they are to report to duty. The advance trip time is paid, but not deducted from annual or other leave. They may rece ive a 7

reimbursement for transportation, lodging and per diem expenses if the advance trip is longer than 12 hours. An employee may receive five days relocation leave. The employee will receive expense reimbursement for the actual move. The employee may claim a portion of the costs of30 days of temp orary housing and expenses if the y are unable to move into permanent housing immediately. The Agency may reimburse an employee for settling an unexpired lease for a maximum of six months. (Un . Ex. 7) There were approximately 10 impacted employees who were eligible for relocation benefits based on an incre ase of at least 50 miles in commuting distance. (Ag. Ex. 26, 28) Loose testified she did not know whether all the employees received benefits to which they were enti tled because the contractor handled the benefits. Her role was to counsel and make calls to cut through red tape if necessary. Julius Sampson testified he was exce ssed to Sacramento. At the time he was living in a leased home in Hayward. He received four days' notice of his assignment before his effective date in Sacramento on April 25, 2009 . He was required to report to training on Apri l 27. He was aware of his eligibili ty for advance leave and expenses, but was told that he needed to request it two weeks in advance of the travel, which was not possible. He did receive five days relocation leave inst ead. He also rece ived 30 days temporary housing allowance to stay in Sacramento for the first month, but was still under a lease at the end of30 day s. He testified the Agency would not grant him lease payments, so he had to keep the apartm ent in Hayward until September 2009, which required him to spend money on the long commute. After a time he stayed with a friend in Sacramento for a small rent payment. He was told by the relocation company that he was not eligible for these expense reimbursements, so he did not file a claim. He testified he contacted Loose, but she could not arrange for the lease payment. However, CARTUS documents show that he received $2,400 total for lease cance llation paym ents in June and July. (Ag. Ex. 28) Erik Novencido testified that he was excessed to Sacramento . He received his reassignment four or five days in advance of the start date of April 27. He was living with his family in Pacifica in a house on which he paid a mortgage . He received travel

8

expenses for two days prior to reporting to his assignment. He also got 5 days of relocation leave after his start date. The only place he could afford to rent was in an unsafe neighborhood . He received reimbursement for moving a bike and couch in June, but would not move anything else because he did not cons ider the apartment safe. After a while he could not tolerate it. He was running up his credit card bills. He began commuting back to Pacifica and suffered an auto accident. He then began sleeping on a friend's couch in Stockton. Mark Hatlen testi fied he was excessed to Corte Madera. He received his assignment seven days before he was to report. He had no car and no driver's license, and there was no publi c transp ortation to trave l the 37 miles from his home to Corte Madera. He had noted on his preference sheet that he was dependent on public transportation. He was not eligible for relocation benefits. He had to buy a car within 7 days, and obtain a

license. When he got to Corte Madera, the duty assignment did not exist. On the third day of work his car broke down . He had no savings to pay for the mechanic, so he had to take vacation leave, and could not pay for the mechan ic until two weeks later when he received his vacation pay. He missed four weeks of work, three of which were unpaid. At the end of the year he had a negative 10 hour annual leave balance. He worked there until October 2009, when he was detailed to Santa Rosa for three months until an employee in Corte Madera retired, allowing him to return. Tiffany Smith was reass igned to Sacramento. She testified she received notice of her reassignment five to seven days before she was to report. She lived very near the Oakland plant and did not have a car. She could not get relocation or round trip leave to look for a place to live. She was told she did not qualify because she missed the meeting where relocation benefits were explained. Smith testified she got one day off on Friday to travel to Sacramento, but did not receive pay. Loose testified she cal led Smith because Smith had missed the meeting in which relocation benefits were discussed. She also called her superv isor and found Smith was AWOL. A few days later, Smith came to Loose's office. Loose testified Blancas forgave the AWOL and allowed her that evening off work so she could find a place to live.

9

Blancas did not recall anything about Smith during his testimony. Loose testified she gave Smith one-on-one attention to make sure her forms were completed and gave her the

toll-free number for CARTUS. Smith was reassi gned to a custodial position but had to go to carrier training for two weeks because the Sacramento plant did not yet have work for her. For six months, she lived in a hotel for $1,000.00 per month and walked 25 minutes to work at 5:00 in the morning. She did not receive 30 days of temp orary housin g allowance because she had no computer and did not know where the library was. She did call the relocation company. She was told to send in receipts, but did not. She did not claim moving expenses, although she knew they were available. Carriaga testified that he did not feel he had any option other than to remain as a

Part-Time Regularsince he had only 11 days of notice. Although he could have gone to Hollister, it would have meant leaving his family and church. Ava Clemons was reassigned to Salinas with five days' notice . She had to drive

from EI Sobrante to Salinas for a 5:00 a.m, start time. She did stay in a hotel for six weeks. She did not receive relocation expense reimb ursements unt il a month later. She was in training for a window clerk position, but never qualified. She had found an apartment, but was told not to mo ve becau se she did not pass the scheme test for the window clerk position. It is not clear whether she was terminated or resigned due to the stress of the reassignment. Because she had not stayed in Salinas for a year , she had to pay back her rel ocation benefits. Loose testified that Clemons had no credit card, so she needed an advance far expenses. Loose obtained a rush advance so that she could receive the money earlier than the usual 1O-day wait time. The Postmaster in Salinas also agreed to chang e her starting time. Loose testified she did not know if all eligible empl oyees received advance roundtrip benefits, but she did not receive any calls about the issue. She testified that employees had up to two years to claim relocation benefits.

10

Senior Plant Manager Ric Blancas testified that management moved the reporting date of a few employees later to accommodate some personal issues, by arranging for them to be detai led back until they were able to report . There was no evidence whether this option was made known to the relocated employees on April 21.

Excessing to Abolished/Reverted Carrier Assignments Custome r Relation s Coordinator David DuPart, who oversaw complement and the reversion process for the Cit y of Oakland , testified that 13 clerks were allowed to preference into carrier craft po sitions. There were four residual vacancies, and some were open for bid. Beforehand, however, Management and the National Association of Letter Carriers were considering some of the residual positions for reversion . Du Part advised Bay Valley Complement Coordinator Yolanda Garcia in late Feb ruary 2009, that one of the vacant positions at the airport was under consideration for reve rsion once a route inspection at the airport was completed. The route inspection began approximately the third week of March 20 09, and the results were implemented in the third week of April. DuPart testified that the position was a valid one at the time ofthe excessing on February 28, but was abolished after an excessed clerk was placed in it. Dul'art testified that the excessing to the carrier craft could not be delayed until after the route inspection without delaying the rest of the excessing event. Chrismarie Constantine was reassigned to a carrier position at the airport on February 28, 2009, as a result ofthe excessing. (Un Ex. 8) She testified that when she arrived, she foun d that the position had been abolished. She worked as an unassigned carrier on different routes for six months until she could bid on a pos ition.

Incorrect Listing afWithheld Assignments Manzo testified that the listing of assignments included two that were misidentified as mail processing clerks, when there were actually examinations that the reassigned employee would have to pass. (IT. Ex. 8-EE l , 2) Manzo ackno wledged that employees could go to the web site to see whether there were quali fying examin ations. She knew of no one who preferenced on a mail processing cler k position who was fired.

11

She pointed out, however, that employees who wanted window positions would have been deterred from exercising preferences on positions that were mislabeled mail processing clerks. None testified. Evidence of Understaffing Crosscraji Assignments

There was evidence that normal staffing on the Delivery Bar CodeSorter was at least two mail processing clerks to perform loading, sweeping and feeding functions, and testimony that three clerks should be used on heavy zone machines. (Un. Ex. 4, JT. Ex. 8U6) The Union claims that there were insufficient clerks to perform these duties, so employees from other crafts were assigned to them. Numerous grievances were filed throughout 2008 and into February 2009 , alleging that mail hand lers were performing

clerk work in the automation section. such as feeding mail at the DBe S machines. The grievances were supported by witness statements in the record in this case. but not all those witnesses testified. (Jt. Ex. 8-X I-149)

The non-hearsay evidence shows that mail handlers were seen performing clerk work on OSCS machines over four hoursa day during Tour 1 on January 26. 27. February 2, 3, 7, 9, 10, II, 13, 14, 17, and Marc h 2 and 9, 2009, in addi tion to sporadic

dates in November and December 2008, and early January 2009. Sometimes mail handlers worked a full day on a DeBS machine.

This evidence was corroborated by m~il handler Kahiah Allen, who testified he performed clerk duties working on the DeBS oras expediter two to three days a week from late 2008 through the summer of2010, particularly in the summer of 2009 , after the

clerks were excessed. He would be the second person on the De BS machine when there was only one clerk. He named three other mai l handlers who also worked on the nBCS machines while he was there. In early 20 11, he worked on the DeBS all day on three

days and half days on two other days. He was not an injured employee. Mariquita Gouig testified she saw mail handlers performing clerk work on the DBe S in 2008 and 2009. Manzo saw mail handler Mathis performi ng clerk work in the

12

Automation section in September 2008. (Jt. Ex. 8-Nl l) Manzo did not testify whether this was still ongoing in March or April 2009. On November 27. 2008, Shop Steward Deborah Mealy was informed by the Acting MDO Bellar that he was understaffed and would have to use mail handl ers Jocelyn Ricafrente and Rachel Oye on the DBCS Machine. Bellar testified that he did not recall the incident, but it would happen if too many clerks were out on annual or sick leave. Manzo was notifie d by Robert Jeffery on March 17, 2009, that carriers Hill, Cousin, Mai and Jenkins, who were not on limited duty, were performin g clerk duties. (JI. Ex. 8-NI0] Jeffery did not testify. Blancas testified that hou rs of other craft employees' work in the clerk craft was not considered in the analysis of how many positions needed to be excessed. He did not deny that crossing crafts had not occurred, but asserted that it was not replacing the clerks who were being excessed . He also asserted that after the excessing. the plant had fewer work hours, and that he had met the target set for reducing work hours. Supervisors Performing Unit Work The Union also presented evidence of the many grievances it had filed alleging that supervisors were performing clerk work starting in November 2007. Mail processor Michael Rodriguez testified that he saw supervisors performing clerk work every day he worked in 2008 and 2009. Witness statements were attached to the grievance, but not all the witnesses testified. Non-hearsay evidence shows that supervisors were seen performing clerk work three or more hours per day on Tour 1 on January 16,27,30,31, February 2, 4, 9, II, 14, and March 2. 5. and 7. and 20 , 200 9, in addition to various dates in December and November 2008. (II. Ex. 8Y) Several supervisors corroborated that they performed cIerk work due to understaffing in order to get the work done. Acting Supervisor Constantine testified she would feed on the DBCS for five to 10 minutes from late 2008 until the end of February 2009, when she was excessed to the carr ier craft.

13

Supervisor D' Arcy Bush did not deny perform ing clerk work in late 2008 and 2009. She remembered running the DCBS, sweeping, feeding, pulling down and working with stacker 2 mail, but could not remember when or how often she did it. She acknowledged performing clerk work for 10-15 minutes at a time several times a week. Supervisor Rose Wheele r testified she performed clerk craft work two to three times a week for up to 20 minutes at a time in late 2008 and early 2009. She believed there was insufficient staffing in the automa tion section at the time . Supervisor Eamest Jones Jr. acknowledged that he performed clerk work for up to

40 minutes at a time at least twice a week in late 2008 and 2009 . Edgard Bellar acknowledged doing clerk work , but only to check whether the mail was being correctly processed.

Denial ofUnion Steward Time Union stewards Andrew Carriaga and Mariquita Gouig testified they were denied steward time. When they were asked why, supervisors would exp lain they were shortstaffed that day. For example. Gouig was denied shop steward time in late 2008 and 2009. On May 8, 2009, her request was denied by Ernest Jones, Jr. because of short staffing. (Un. Ex. I- B- I I B-2) Carriaga testified regard ing instances he had been denied

steward time throughout 20 10 and 20 11 into 20 12. (See also, Un. Ex. 9) He acknowledged that the denied time added up to only two or three weeks over 18 months. Supervisors acknowledged they had denied stewards time to prepare grievances. Wheeler testified, however, that she would deny it because the dispatch was running late on a particular day . She would allow the steward the time the next day.

Color Code Changes and Delayed Mail Manzo testified that she had filed grievances in 2008, claiming that clerks were being instructed to change the color codes on standard mail so that it appeared to have been processed timely. There were employee statements provided at Step 2 that claimed

color code changes were still being made in February and March 2009, in order to hide

14

the understaffing that led to delayed mail. (JI. Ex. R-7, 10-13, 16) Phillips, Stohlmacher, and Martin who witnessed the color changes, did not testify. Hatlen, who was excessed in early 2009, testified he was told in early 2008 to change color codes. Hatlen testified that

on February 7, 2009, after he finished the he finished the first pass, he was unable to send the mail from the general purpose container through the DBCS for a second pass. He left the mail in the GPC, which was coded pink.. When he returned the next day, the GPe was

still there, but the color code had been changed to blue for Monday delivery. (See also JI. Ex. 8-R16) Carriage also testified he was once told to change color codes on the mail that was not processed timely . Manzo testifi ed that sometimes color code changes were accomplished by running

the mail through the DBCS only once. When the associate offices received the mis-

.distributed mail. they would have to send it back, which would result in the mai l having a different color code. Using this practice, local management appears to be keeping up with the mail. Manzo acknowledged that the mail will get processed eventually once there is a low-volume day. All the supervisors who testified denied changing the color codes on the mail. Blaneas testified that he never directed supervisors to change the color codes and would have disciplined any supervisor who did. He explained that, even jf color codes had been changed, it does not affect the volume of the mail because it has to be processed eventually.

Understaffing on DnCS Machines The Union attached to the grievance the names and time periods of clerks numing

DBCS machines by themseives in early 2009. In some cases, the clerks ran a machine by themselves for seven hours a day, not just at start up and closing times. (Jt. Ex. 8-U16) The employees did not testify, except for Erik Novencido, who testified he worked 8

hours on a machine by himself on February 18, 2009, (see also JI. Ex. 8·U25) and Mariquita Gouig, who worked seven hours on machine by herself on December 17, 2008. (JI. Ex. 8-U41) Andrew Carriaga also worked on a DBCS machine for 6.5 hours on

December 18, 2008, and for two hours on February 28, 2009. (JI. Ex. 8-U42, 62)

15

Misleading Clock Rings/or Limited and Light Duty The Union charged th at limited and light duty employees we re not clocking in on limited duty or standby time , but only clocked in on thei r base operation. Manzo testified there were no em ployees being listed as being on unp roductive standby time. She offered no clock rings or other documentary evidence .

Misleading Loaner Operation Staffing Hours The Union charged th at the Agency was deta iling employees to th e stations or branches, but charging their hours to the P&DC so that it looked like more employees were working at the pl ant than was actual ly true. The Union provid ed a list of 9

employees who had been detai led out while their hours were charged to the plant from 2007 to 2009. but did not bring those employees to testify, prove the number of hours they were detailed or even prove how many were deta iled in late 2008 and early 2009 . when decisions reg arding th e number of emp loyees to be excessed were being made.

Unfilled Newly Established Duty Assignments Clerk Craft Dire ctor Manzo testified that 47 positions sho uld have been posted in late 2008, but were not. Employees in other bids were being detailed in the automation, manual outgoing flats, and manual outgo ing letters units. She theorized th at these "positions" were not accounted for when decisions were m ade abou t how many employees were needed in a section. Attached to the grievance were the statements of many employees who had been working all day every day for month s as unassigned regular employees or in duties that were outside of thei r bid positions. However, none of the employees testified. Blancas testified that vacant positions had been withhe ld duri ng 20 08 because of several excessing events in the Area. Once withheld, the local management could not fill them.

16

Unfilled Pos itions Awarded after Improper Reversion Manzo testified that the Agency did not comply with 12 grievance settlements that called for reposting of bids because of improper reversions or bids occupied by injured employees who were not performing the work of the bid. According to the Agency's response for inform ation during the grievanc e process, all but two of the bids had been repo sted and were occupied on April 23, 2009 . (Ag. Ex. 21) Manzo testified that the information in the Agency' s response was incorrect, but gave no information disproving any of the assertions.

POSITION OF THE UNION The Agency did not demonstrate a need to excess the employees. The Agency failed to comply with the reassignment procedures of Article 12. There was overwhelming evidence that the Oakland installation was understaffed. Color coding was changed so that mail processing could be de layed . Casuals were retained after career employees were exce ssed, and no justification for their retention was offered. Mail hand lers, carriers and supervisors were performing clerk work . Stewards were den ied time because of understaffing. Newly established bids were not posted for bid, which wou ld have affected the number of employees excessed. The Agency did not give notice to the Union as required by the National Agreement. They did not meet at the Area! Regional level as required by the collective bargaining agreement. The Agency fai led to rebut the Union's evidence that the employees were not given 60 days advance notice of the date and location where they were being excessed. Emp loyees were excessed to duty assignments that did not exist. Withhe ld assignments were not correctly identified. Several employees were reassigned to carrier positions that were scheduled to be reve rted. Local Union presidents were not notified of the employees being reassigned to their installations. 17

Many of the employees entitled to relocation expenses did not receive them or did not timely receive them. They did not receive relocation leave or advanced round-trip travel benefits. As a result Clemmons was compelled to resign from the Postal Service. Loose did not fully understand the CARTUS documents. The grievance sho uld be sustained . The excessing shou ld be rescinded and employees returned to their ass ignments. They should be made whole. Separated employees should be reinstated and made whole, including Clemmons, Cummings and Franco. Carriaga and Valdezotto should be made whole for being compelled to volunteer to be reassigned to part time regular positions . Employees who lost work hours because of excessing should be made whole. The Union should be paid a rem edy for the Agency's failure to provide notification to the gaining union presidents .

POSITION OF TH E EMPL OYER The Union did not prove that the excessing of employees violated the agreement. Management needed to reduce the number of full-time regular clerks in the Oakland installation other than through attrition. The contractual procedures and princi ples of reassignment were followed. The contract limit s the Union's challenges to the need for excessing. Only a grievance based on the comparative work hours report is permissible under the contract. Since the Union did not argue the CWHR in this case, it relinq uished its right to challenge the excessing decision.

The Step I and Step 2 grievance settlements attached to the Union's Step 2 grievance in this file are not precedent for any purpose and cannot be used as evidence for any purpose. Open grievances are not evidence that Management violated anything. Many cited by the Union are outside the time period relevant to this grievance. The Union's theory that clerks should not have been excessed because employees from other crafts were performing clerk work faces a number of hurdl es. First, the Union has to show that the work being done was exc lusively clerk work. Second, the Union has to show that there was no contractual allowance for the cross-craft assignment, either

18

under Article 7 for non-injured employees or under Article 13 for the injured employees. Third, the Union would have to show that the hours could have been put together to create a full-time duty ass ignment on a year-round basis that would meet the needs of the operation. The Postal Service is required to find work for injured employees outside their craft ifthere is not any inside their craft. The Union would have to show availability of work inside the craft to prove a violation of the National Agreement. The Agency is contractually permitted to assign work across crafts. The key is that the ass ignment was not made on a full-time basis. The Union would have to show that the clerks would not have been excessed but for the cross -craft assig nments. No showing has been made that a full-time assignment could have been created from the sporadic work being done by mail handlers in this case. The Union's claim that there was plenty of work because superv isors were performing bargaining unit work and shop stewards were denied union time also is not sufficient, since the Union did not show how the hours could have been combined to create a full-time duty assi gnment. Merely finding 40 hours per week is not sufficient; only a showing that a mail handler was working clerk duties 8 hours a day would show that operations could justify keepin g a full-time duty ass igrunent. Management properly notified the Union at the local and regional levels. The only evidence that Gonzalez was not notified is hearsay. There were extensive meetings with the local union . Casual employees were separated from the plant prior to excessing and from substations shortly after the excessing. The last casual was separated on Apri l 25, 2009. Having only four casual employees in a clerk workforce of 1,000 was minimal and easily justified under the Das award and Downes memo. Even if this was a violation, the union would have to show that the casual hours could have been used to create a full-time position. Casual employees can be used, even during excess ing, to replace an employee on long-term leave.

19

Claims about color changes and delaying mail were not proven. Even ifthere was deliberate delay ing of mai l, it would not reduce the mail volume since it would have to be delivered the next day. There was no measurement of how much mail was delayed or any estimate how many employees should have been retained to process it. Allegations that employees were detailed outside their work assignment but work hours were charged to the plant were not proven. Allegatio ns that the Age ncy had 47 unassigned regulars that shou ld have been put in bid jobs do not show the lack of a need for excessing. Even if Management had posted the jobs, it would have had to excess the junior employees, leaving the j obs vacant and then reverting them. The Union has not proven that the list of carrier j obs was inaccurate at the time 13 clerks were excessed to the carrier craft. Just because the clerks were excessed once does not shield them from bein g excessed again. If they had not been excessed to a carrier position. they would have been excessed out of the installation. The Union's claim that the listing of withheld positions was inaccurate does not show a violation of the agreement. There is no evidence of any employee who was negatively affected by the descriptions of the withheld positions. Management's alleged failure to repast jobs that were improperly reverted had no effect on the number of emp loyees being excessed . Even if they had been posted, Management could have abolished them, making the emp loyee who successfully bid on the position unassigned. The Union has not pointed to any provision of the contract that sets a timeline by which senior employees must be given the option to volunteer for transfer in lieu of the excessing of a junio r employee. The evidence shows that Manage ment did make the option available . There was clearly a need for the excessing. This is shown by the fact no employees have been returned to the plant. In addition, a later excess ing event eliminated

20

another 94 positions. Two more excessing packages are currently in progress to match the workforce to the dwindlin g workload. Employees were timely notified . The 60-day notice of Article 12.5.C.5 was met in September 2008. It was suffic ient to inform them they shou ld not tie themse lves down geographically . As Arbitrator Rimmel decided, it was not required to notify them at that point where they would be ass igned . It would have been very difficult since there are excessing events happening all over the Pacific Area and the process is a comp lex one. Even though the process resulted in employees having only about 10 days of notice. that is not a contract violation. In addition , 15 or fewe r were moving more than 50 miles past their former commute. The Senior Plant Manager was personally involved in minim izing the impact on these employees and assigning Loose to assist them. Any employee who was deprived of benefits had up to two years to apply for them. The two employees who chose to become Part-Time Regu lar employees so that they would not be excessed are not due any compensation. As Carriaga testified, they knew that there wo uld be no guarantee of full-time work . The grievance should be denied. Ifthere is any violation found, the remedy issue should be remanded to the parties to resolve, and the Arbitrator should retain jurisdiction. DISCUSSION Need for Excessing The Agency contends that the Union may challenge the need for excess ing only by using a Comparative Work Hour Report, which the Union can request 60 days after the excessing out of an installation . It cites the awards of respected arbitrators in support of its position. Here, the union filed the grievance in February and procee ded to Step 2 on March 20,2009, before the Comparative Work Hour Report was due. Th erefore, the CWHR could not have been used to challenge the need for excessing. If the Agency's view were 21

correct, the Union wou ld not have had any ability to cha llenge the need for the excess ing until more than two month s afte r the eve nt occurred, with all the resulting disruption and inconvenience to the employees. This would not be consistent with the "primary principle in effecting reass ignments" in Article 12.4.A that dislocation and convenience of the regular workforce should be kept to a minimum. Moreover, there is nothing in the contract that indicates the CWHR is the exclusive means to challenge the need for excessing. The decision to excess employees is fundamentally a management decision, except as it is limited by the law and the collective bargaini ng agreement.' Generally, the Union may cha llenge a management decision by a showing it was arbitrary, capricious, or made in bad faith. But the parties here agreed that th e Union could also challenge the correctness of the dec ision using the CWHR. If the parties had agreed that the CWHR- and not the usual means of challenge - was the only permissible means to challenge a dec ision to excess, they could have said so, eithe r in the Na tional Agreement or in the Joint Contract Interpretation Manual issued in 2007 . Since they did not, this Arbitrato r interprets the contract to allow either an "arbitrary, cap ric ious and bad faith" attack and/o r a fact-based challenge exami ning actua l hours worked without regard to the good faith or the discretion ordinarily allowed to management. Thus, the Arbitrator permitted the Union to present a case challenging the need for excessing without reliance on the CWHR. Under th e usual standard, it is not enough for the Union to show that management' s decisio n was incorrect unless it can be shown that the decision was arbitrary or made in bad faith. Such a challenge is a difficult one for the Union to prove. At a minimum, th e Union mu st show that there was enough work for a 40-h our per week schedule for several mo nths to warrant bringing just one em ployee back to the Oakland installation.

I Article 3 of the National Agreement retains Management 's right to " ma intain the efficiency of the operations" and to "determine the ... personnel by which such operations are to be conducted," subject to other provis ions of the agreement.

22

The Union put on numerous witnesses who established that clerk work was being performed by supervisors. mai l handlers, and limited duty employees from other crafts. Howeve r, the union did not attempt to show how the hours of work do ne by employees other than clerks could have been put together for even one clerk position. Manzo acknowledged she had not created any chart to show that positions could be created for full-time regular clerks . It is not clear that the hours even amounted to 40 hours in a week. much less that they could be performed on a regular schedule that wou ld meet the needs of the Postal Service. In addition, there is ev idence that the PTRs who stayed afte r the excessing in fact had less than 40 hours a week. Carriaga testified he was assigned on ly 12 hours a week after the excessing in April 2009. There also is no evidence that any clerks have been allowed to exe rcise retreat rights, and that further excessing took place after this one.

Principles of Reassignm ent Failure to Meet with the Union at the Regional Level - Art. 12.B.4 This allegation was not pro ven with com petent evidence. Gonzalez did not testify .

Volunteers-in-Lieu The re is no merit to the contention that senior emp loyees sho uld have been offered the opportunity to opt for reass ignment before the 13 emp loyees we re excessed to the carrier craft within the Oakland installation . Article 12.5.C.5.a.(7) states clearly that this option is not available for cross-craft reassignment within the installation. The Union did not show when the se nior employees were notified of the option to voluntari ly transfer or that any were harmed by the allegedly short time to decide .

Failure to Remove Casuals - Art. J2.4.D The contract calls for casual emp loyees to be tenninated before employees are excessed out of the install ation . The re is no evidence that any casual employee remained after April 25, 2009, when the excessing became effective. The Union's vigilance apparently prevented this po tential contract violation. 23

Failure to Return Limited! Light Duty Employees to their Crafl-JCIM Art. I 2.5.B There was no evidence that any limited or light-duty employees from other crafts continued to perform clerk craft duties after April 24, 2009. In partic ular, there was no showing whether identified limited duty employees were temporaril y or permanently reassigned to the clerk craft.

Failure to Notify Local Union Presidents There was no competent evide nce regarding this allegation.

Excessing to Abolished/Reverted Carrier Assignments The evide nce indicat es that, at the time of preferencing, no decis ion had been made regard ing the carrier pos ition that was abolished or reverted around the time Constantine was reassigned to it. Even if the Agency had known the position would disappear, there is no evidence that Constantine was harmed. She was allowed to continue as an unassigned carrier until a position became vacant, rather than being excessed out of the installation.

Incorrect Listing a/Withheld Assignments There is no evidence that anyone was harmed by any failure to accurately describe withheld assignments. No clerk testified that he or she was misled.

60-Day Notice The Union argues that each employee was entitled to not ice 60 days before reassignment of the place to which they were to be reassigned. The Agency disagrees, contending that the 60-day not ice is given to warn employees they should not buy a house or ente r a lease or make other long-term commitments. It also detailed the difficult and time-conswning process of deciding who will be reassigned where. Article 12.5.8.5 is ambiguous whether the 60-day notice must disclose the place to which an employee wi ll be reassigned. However, the fact that the same sentence

24

provides for movi ng and trave l expenses and refers to the relocation and travel policy gives a clue to the intention of the parties. Since the relocation policy requires two weeks' notice for advance round-trip travel leave, which can be taken for up to 10 days (Un. Ex. 6), there is a strong argument to be made that the parties contemplated sufficient advance notice that an employee can take advantage of the benefits that the contract and relocation handbook convey. This conclusion is bolstered by the contract language in Article 12.4 and 12.5, which envis ions a lengthy process, starting at least six months in advance, if

possible.j The Arbitrator is aware that the withholding and preferencing process was a lengthy and comp licated one. But the process of uprooting oneself from home and family and finding living arrangements in unfamiliar places is also difficult, especially for employees who do not drive, have family, or have no savings. The 60-day notice requirement is qualified by the phrase, "if possible," but it has not been shown here that it wou ld have been imposs ible to delay the effective date for 50 days. While the Union has not proven that the excessing was an unreasonable action to take in the face of declining mail volume, it has shown that there was plenty of work for the clerks who were at the plant, so much so that mail handlers and supe rvisors were performing clerk work in order to get the work done. Mail handler Allen, for example. testified he perfo rmed clerk work regularly throughout the summer after the clerks were excessed. This evidence indicates that the workload could have supported the clerks a few weeks longer. For most of the impacted employees, the lack of time ly notice apparently did not cause much harm . However, for those who were forced to move or who did not have transportation, the short notice had harmful consequences. According to the evidence, management did not meet with the employees who were eligib le for relocation expenses for nearly a week, leavin g the employees five or six days, while working in Oakland, to arrange new hous ing. While there is evidence that two employees eligible for relocation benefits received extra time to report to their new duty assignments, there is no evidence 2 The Arbitrator considered the award cited by the Postal Service on this point, but no reasoning was given for the conclusion in that case.

2S

,.rn, , .,. j

,

that any other employees were told of the possibility of delaying their reporting date if

they requested it. Sampson testified he was unable to take advance round tri p lea ve to look for housing. He inc urred temporary ho using costs, which we re not fully reimbursed. Novencido testifi ed he had no time to look for a place to live. Hatlen did not have time to buy a reliabl e car before he had to report for work. Sm ith testified she was not paid for

the one day of advance leave she took. Sinceshe had no transportation, it was difficult to find a place to live while working. Clerks Carriaga and C lemmons also testified about the d ifficult tran sition process.

It does not appear to the Arbitrator. however, that Carriaga's decision to become a PTR would have been any different if given more time to think about it. The evidence was not suffic iently clear that Clemmons wou ld have remain ed in Salinas if given 60 days ' notice, since it is unclear whether she resigned or was removed for failing to qual ify for window clerk duties.

As the parties stipulated that the Arbitrator should remand the case back to the parti es for any remedy if she found a contractual violation, the Arbitrator will not decide the rem edy question un less requested by the parties.

INTERIM AWARD The Agency violated Article 12.5 .B.5 of the collective bargaining agreement when it

excessed approximately 38 full-time clerk cralt employees from the Oakland installation in Spring 2009, wi thout giving the m 60 days' notice of the place of reassignment. As stipulated by the parties, the Arb itrato r remands the remedy issue to the part ies. If the parties are un abl e to agree on a remedy within 30 days, the parties may invo ke the Arbitrator's j urisdicti on to decide the remedy.

DATE: November 17, 201 2.

26