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Title: United States Postal Service and American Postal Workers Union
Date: October 30, 2002
Arbitrator: Fred D. Butler
Citation: 2002 NAC 129

REGULAR ARBITRATION PANEL

In the matter of Arbitration

UNITED STATES POSTAL SERVICE


AMERICAN POSTAL WORKERS
UNION, AFL-CIO

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Grievant:   Class Action

Post Office: Marina P&DC

USPS Case : F98T-1F-C 01107629

APWU Case No: 02901

BEFORE:                           Fred D. Butler, Arbitrator

APPEARANCES:
For the U.S. Postal Service:



Kevin Gray
Labor Relations Specialist
United States Postal Service
2300 Redondo Ave
Long Beach, CA 90809-9401
For the American Postal
Workers Union: AFL-CIO

Shirley Jasper, President
Maintenance Craft, LA Local
P.O. Box 523645
Los Angeles, CA 90051
Place of Hearing: Marina P@DC
Date of Hearing: September 27, 2002
Date Record Closed: October 5, 2002
Date of Decision: October 30, 2002
  Relevant Contract Provision: Article 7, 15
Contract Year: 2000-2003
Type of Grievance: Contract

Award Summary:

The Union has met its burden in demonstrating that Management's decision to utilize Maintenance Control Clerks to uncrate and move file cabinet effectively crossed occupational groups without justification and in violation of the National Agreement.

FRED D. BUTLER,
Arbitrator

I.
INTRODUCTION

This matter involves Managementís decision to utilize Maintenance Support Clerks to unpack and move storage cabinets into their work location instead of using Custodians. 

The Union filed a grievance in this matter alleging that Management is in violation of the National Agreement by taking unilateral action in assigning employees of one occupational group to perform core duties of another other occupational group.

The matter was heard through a Step 3 Grievance hearing on April 25, 2001 and denied on April 26, 2001.  The matter was appealed to Arbitration on June 7, 2001. 

On September 27, 2002 at the Marina P& DC, Inglewood, California, the following parties appeared before me in an arbitration hearing, pursuant to the agreement between the United States Postal Service ("Management") and the American Postal Workers Union ("Union").

Representing the Union was Shirley Jasper,  APWU Advocate.  Assisting Ms. Jasper was Jack Johnson, Technician.   Appearing as a witness for the Union was Carl Washington, Maintenance Mechanic & Shop Steward.

Representing Management was Kevin Gray, Labor Relations Specialist.  Appearing as a witness for Management was Darlene Fields-Mimms, Manager Maintenance Operations Support.

The parties were afforded full opportunity for examination and cross-examination of witnesses, introduction of relevant exhibits and closing arguments.  The proceedings were tape recorded as an extension of the Arbitrator's personal notes.

The record was left open for seven (7) days to receive additional exhibits.

The parties introduced two joint exhibits.  Namely JE-1 the National Agreement for period 2000-2003, JE-2, the moving papers in this matter numbered consecutively from pg. 1 through pg. 9.

The Union introduced four additional exhibits.  Namely U-1, Marina Maintenance Overtime Desired List dated January 1, 2002-March 31, 2001.  U-2, Article 7.2 A of the 2000-2003 National Agreement, U-3, Article 15.2©) of the 2000-2003 National Agreement and U-4 Memo to Idowu Balogun from William Bowling dated 6-6-01 regarding the time limits for grievances.

II.
ISSUE PRESENTED

The following issues was presented to the arbitrator.

1. Did Management violate the National Agreement when it assigned Maintenance Operation Support Clerks to perform duties of Custodians?  If so What is the remedy?

2. Did Management violate the National Agreement when it failed to provide the Union with a Step 2 Decision regarding its grievance in the above matter?  If so, what is the remedy?

III.
RELEVANT CONTRACT PROVISION(S) AND REGULATIONS

The relevant contract provisions, in pertinent parts, are outlined below.

ARTICLE 7. EMPLOYEE CLASSIFICATIONS

Section 2. Employment and Work Assignments

A. Normally, work in different crafts, occupational groups or levels will not be combined into one job.  However, to provide maximum full-time employment and provide necessary flexibility, management may establish full-time schedule assignments by including work within different crafts or occupational groups after the following sequential actions have been taken:

1.   All available work within each separate craft by tour has been combined.

2.   Work of different crafts in the same wage level by tour has been combined.

The appropriate representatives of the affected Unions will be informed in advance of the reasons for establishing the combination full-time assignments within different crafts in accordance with this Article.

ARTICLE 15. GRIEVANCE PROCEDURE

Step 2 .  .  .©) The installation head or designee will meet with the steward of a Union representative as expeditiously as possible, but no later than seven (7) days following receipt of the Step 2 appeal unless the parties agree upon a later date.  . 

IV.
STATEMENT OF FACTS

On January 31, 2002 file cabinets were delivered to the Marina PD&C.  These cabinets were ordered by the Maintenance Operations Unit and were to be used to store items and house parts in the Maintenance Control Section of the facility .(Testimony of Darlene Mimms)

The cabinets arrived during Tour 2 and was unpacked and moved during Tour 3 (Testimony of Darlene Mimms).  Two Maintenance Control Clerks were directed to unpack and place the cabinets in the storage and parts room by moving them from the delivery point.  This entire job took about two hours. (Testimony of Carl Washington)

The Position Description for Maintenance Control Clerk does not mention either "unpacking" or "moving furniture". (JE-2, pg 4)  However the Position Description for Laborer, Custodial states in pertinent part that the laborer's duties includes the "uncrating and assembling furniture and fixtures using bolts and screws for assembly, loading and unloading supplies and equipment."(Je-2, pg 6, paragraph 4)  In addition Laborers "move furniture and equipment." (JE-2, pg 6, paragraph 6)  Custodians were available at the time who could have been used to unpack and move the cabinets.(Testimony of Carl Washington)

On February 9, 2001 the Union filed a timely grievance and met with Supervisor Mimms, who denied the grievance on February 14, 2001.  On February 22, 2001 the Union filed a Step 2 Grievance(JE-2, pg. 4)  and once again had a discussion with Ms. Simms about the grievance.(Testimony of Carl Washington)  However there was no response to the Step 2 Grievance request.  The Union then appealed the matter to a Step 3 Grievance on  March 21, 2001.(JE-2, pg. 3)  The Step Grievance was denied on April 26, 2001 and the matter was appealed to arbitration on June 7, 2001.

V.
POSITION OF THE PARTIES

Unions Position:

It is the Union's position that Management should have utilized Laborer-Custodians, and not Maintenance Control Clerks, to unpack and move the file cabinets because they were furniture.  They maintain that this function is outlined in their job descriptions.

The Union also maintains that Management denied it due process by failing to meet at Step 2 or render a Step 2 Decision in this matter.

Therefore the Union request that Management be ordered to cease and desist crossing occupational groups unless they follow the guidelines of the National Agreement.  In addition, the Union request that the two most senior Custodians be awarded two hours of  overtime as a remedy for Management's violation.  The Union presents USPS & APWU Case No. C4T-2J-C 38251, Klein, Arbitrator(1988) as authority for its request.

Managementís Position

It is Management's position that the items unpacked were not furniture in the usual sense.  They maintain that these cabinets are equipment that was ordered by the Maintenance Control Section to be used by them to store supplies.

They maintain that the Maintenance Control Clerks duties are to "receive, unload, store and issue items against corresponding document."  They contend that the unpacking of these items and the placing of them in their own area for their use was consistent with those duties.

It is also Management's position that while it did not issue a Step 2 Decision in this matter, the Union has already executed it's remedy which is outlined in the Grievance procedure and that issue has already been resolved.

Management also raised another objection at the hearing concerning the timeliness of the filing of the Appeal to Arbitration.  It is their position that the Appeal was not timely because it was requested after the time limitations.

Therefore Management request that the matter be denied based on the untimely filing of the Appeal to Arbitration or in the alternative on the basis that the work performed was within the purview of the job duties of a Maintenance Control Clerk.

VI.
DECISION

A. Timeliness of the Appeal

Article 15.2 (Step 3) states in pertinent parts that the Union may appeal an adverse decision directly to arbitration at the appropriate Arbitration Processing Center within twenty one 21 days after the receipt of the Employer's Step 3 Decision, in accordance the procedure hereinafter set forth.

The record in this matter shows that the Step 3 Decision was rendered on April 26, 2001 and received by the Union on May 1, 2002.  However the Appeal to Arbitration was not filed until June 7, 2001, over twenty one days after it's receipt. 

Under normal procedures that would not be timely.  However the record in this proceeding also reveals that the parties stipulated that the time frames for filing of the Appeal in this matter would not begin until June 6, 2001 (U-4).  This meant that the twenty one day (21) did not begin until that time.  Therefore the Unions filing of the Appeal on June 7, 2001 was timely filed.

B. Step 2 Response.

Article 15.2 states in pertinent parts " The installation head or designee will meet with the steward of a Union representative as expeditiously as possible, but no later than seven (7) days following receipt of the Step 2 appeal unless the parties agree upon a later date"

Management did not formally meet with the Union at Step 2 nor did they issue a Step 2 Decision.  Article 15.5C states that "Failure by the Employer to schedule a meeting of render a decision in any of the Steps of this procedure within the time herein provided (including mutually agreed to extension periods) shall be deemed to move the grievance to the next Step of the grievance-arbitration procedure.

The record shows that the parties then moved the matter to a Step 3 grievance meeting which was held.  This remedy is in accordance with the negotiated National Agreement and therefore the failure to hold a Step Two meeting cannot be deemed to be a violation of due process as the Union suggest.

C. Merits.

The evidence presented showed that it is the duties and responsibilities of the Laborers, Custodians to "perform general laboring duties such as uncrating and assembling furniture . . ."  In addition the Laborers are also responsible for moving furniture and equipment.  In contrast the Maintenance Support Clerk has the duty to receive, unload, stores and issues items against corresponding documents.

The Support Clerks overall duties are outlined in the Functional Purpose outlined at beginning.  This states "perform a variety of data collection and processing task in support of scheduling, planning, control, and eporting for maintenance operations, completes requisitions, stores and issues supplies, parts and tools."

The Maintenance Control Clerk Position Description reads more like a supply clerk who has the responsibility for supply and inventory while the Laborer position performs general laborer duties such as cleaning custodial moving equipment, etc.

This Arbitrator viewed the file cabinets on site.  They are large metal file cabinets and can be classified as either furniture or equipment.  In either case, the responsibility for moving them was in the purview of the Custodian Laborer Position Description.

Management could have combined the duties of the Laborers with that of the Maintenance Control Clerks under certain conditions.  Article 7.2 allows the inclusion of work within different crafts in order to " provide maximum full-time employment and of  provide necessary flexibility." However the Union must be advised in advance of the reasons for this actions.  There was no evidence that this was done in this case.

Therefore the Union has met its burden in demonstrating that Management's decision to utilize Maintenance Control Clerks to uncrate and move file cabinet effectively crossed occupational groups unilaterally without justification and in violation of the National Agreement.

AWARD

The Grievance is sustained.   Management is ordered to cease and desist.   The two eligible Custodians on the Overtime Desired list shall be awarded two hours overtime.

 

Dated: 


FRED D. BUTLER
Arbitrator

 

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