States Postal Service and American Postal Workers Union
Fred D. Butler, Arbitrator
The Grievance is denied.
There was a past practice between the Local and USPS Local Management
that became an agreed upon vacation schedule during the months of December.
The Parties are bound by this practice until and unless it becomes
part of discussions under the procedures outlined under Article 30 of the
This matter involves Local Management's decision to
restrict annual leave at the Huntington Park Post Office for all of the
weeks outside of the choice vacation a period during 2001, including
December with the exception of the weeks of Christmas and New Years.
The Union filed a grievance in this matter on
November 18, 2001 alleging that Management is in violation of Article 30.4
of the National Agreement and the Local Memorandum of Understanding.
matter was heard through Step 2 and denied on November 28 2001.
It was appealed to arbitration on December 30, 2001.
On February 28, 2002 at Huntington Park,
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
Representing Management was Dan Castrellon, Labor
Relations Specialist. Appearing
as a witness for Management was Henry Yamaguchi, Postmaster, Huntington
Representing the Union was David Renshaw, Advocate.
Appearing as witnesses for the Union was Sylvia Tatenco, Former Shop
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
The parties introduced six joint exhibits. Namely JE-1 the National Agreement, JE-2, the moving papers
in this matter numbered consecutively from page 1 through page 8, JE-3
Memoranda Of Understanding between Huntington Park Post Office and
California Area Local, 1994-1998, JE-4 Seniority listing, JE-5 Annual Leave
Selection Charts for years 1991, 1996, 1997, 1998, 1999, 2000 and 2001 and
JE-6 Copies of Memorandums of Understanding between Huntington Park Post
Office and California Area Local for 1981-1984, 1987-1990 and 1994-1994.
following issues were presented to the arbitrator.
1. Whether the present grievance is arbitrable and
properly before the arbitrator for adjudication.
2. If so, whether management's practice of
excluding all of the weeks of December with the exception of Christmas and
New Years for annual leave bidding violated the National Agreement or Item #
4 of the Local Memorandum of Understanding.
If so, what is the proper remedy.
CONTRACT PROVISIONS AND REGULATIONS
relevant contract provisions, in pertinent parts, are outlined below.
Presently effective local memoranda of understanding not inconsistent
or in conflict with the 1998 National Agreement shall remain in effect
during the term of this agreement unless changed by mutual agreement
pursuant to the local implementation procedure set forth below or, as a
result of an arbitration award or settlement arising from either party's
impasse of an item from the presently effective local memoranda of
There shall be a 30 consecutive day period of local implementation which
shall occur within a period of 60 days commencing February 15, 1999 on the
22 specific items enumerated below, provided that no local memorandum of
understanding may be inconsistent with or vary the terms of the 1998
Formulation of local leave program.
duration of the choice vacation periods. . .
An alleged violation of the terms of a memorandum of understanding shall be
subject to the grievance-arbitration procedure. . .
On May 22, 1996 the APWU, California Local signed a Memoranda of Understanding with the Postmaster of the Huntington Park Post Office.(JE-3) This agreement covered the period 1994-1998 and also served as the agreement between the parties for the contract years 1998-2000. (Testimony of Sylvia Tatenco)
Item 4 of the agreement covers the formulation of
the local leave program. Item 5
outlines the Duration of the "Choice Vacation Period."
These and other items in the agreement are authorized under Article
30 of the National Agreement. The
Memoranda does not specifically mention the Month of December or the
Christmas or New Years Holiday.
On 10/23/2000 the Postmaster placed a memorandum on
the bulletin board advising all employees to make annual leave selections
for the year 2001.(JE 2, page 7) On
11/3/2000 a grievance was filed by the Shop Steward because Clerks in the
bargaining unit employees who complained that they were not being allowed to
request vacation in the month of December of 2001.(Testimony of Sylvia
This was not unusual in that all of the weeks in December with the
exception of Christmas and New Years had been blocked off in every year
during the entire period of time that Ms. Tatenco was a Shop Steward. (JE 5,
Testimony of Sylvia Tatenco)
Ms. Tatenco has been a Shop Steward for five years
and has not filed a grievance on this issue in the past.(Testimony of Sylvia
The Postmaster does not restrict choosing annual
leave during the first round with the exception of these weeks.
The Choice vacation period runs from the second week of May through
the last week of September and four Clerks are allowed at one time.
During the non-choice period, three employees are allowed to take
annual leave at the same time.(JE-3, page 2)
Prior to Mr. Yamaguchi being assigned as Postmaster
at Huntington Park Station the entire month of December was blocked off and
employees were not allowed to take annual leave.
(Testimony of Henry Yamaguchi) After
his appointment in 1991, Mr. Yamaguchi met with the Local's representatives
and changed the procedure to allow for the Christmas and New Years
week.(Testimony of Henry Yamaguchi)
OF THE PARTIES
It is the Union's position that Management is in violation of the Memorandum of Understanding because Management do not allow employees to take annual leave during the entire month of December, therefore restricting the bidding of annual leave outside of the choice period.
It is their contention that because there is
nothing in the Memoranda Of Understanding restricting annual leave during
December or any other time that the entire 52 weeks should be open during
the first round of Annual Leave Bidding.
It is Management's position that the it has
established a practice of not granting annual leave during the three weeks
of December before the Christmas Holidays.
This practice, they maintain has been in effect at the Huntington
Park Station for nine (9) years and has been an accepted practice by both
Management as well as the Union. Therefore
they maintain that it effectively became a binding agreement between the
Union and Management.
They also maintain that if the Union wanted to
change any local practice it had ample opportunities in 1996 and in 1998 to
do so under Article 30 of the Contract.
However in changing those agreed upon practices or the MOU, Management contends that the Union is limited to the
procedures outlined in Article 30.
Therefore they maintain that the grievance
arbitration forum is not proper.
Management presented the following Arbitration
decisions in support of its position. Namely
USPS & APWU, Case NO. S7C-I 700044; USPS& NALC, Case No. C7N-4L-I
99502; USPS & APWU, Case No. S7C-3A-I 700040; USPS & APWU, Case No.
A94C-1A-I 96051983; USPS & NALC, Case No. F94N-4F-96044876; USPS &
APWU, Case No. W4C-5F-C 29923; USPS & NALC, Case No. S7N-3S-I 700066;
USPS & APWU, Case No. C7C-4K-I 99285; USPS & NALC, Case No.
NB-NAT-0006; USPS & NALC, Case No. H7N-4U-C 3766
Management has argued that Article 30 of the
National Agreement, which enables local officials in Management as well as
the Union to negotiate over certain work rules and other terms and
conditions of employment, requires that the negotiation take place within a
specific window of time.
More specifically Article 30 sets forth a period of implementation following the completion of each National Agreement. This period is normally a 60 day period and in this case, the local negotiations on this MOU would have occurred between February 15, 1999 and April 15, 1999.
In this case, however the parties did not open
negotiations and decided to “roll over” the MOU from the preceding
contract. This MOU is identified as JE-3 in the record.
Therefore any negotiations to change the MOU for the years covered by
that contract has passed.
This is complicated by the fact that the National
Contract beyond 2000 was being negotiated during the time of this
controversy so that there was no opportunity to open discussions until after
that contract had been ratified. Because
of this, there was no discussion between the local Union and local
Management about changing the MOU.
When these negotiations do take place in accordance
with the National Agreement, all proposals not resolved may be submitted to
final and binding arbitration or where there is no request for arbitration
the provisions of the former MOU shall apply, unless it is inconsistent with
or in conflict with National Agreement.
Management also takes the position that the Union
is attempting to modify the existing MOU.
I disagree. When asked
at the arbitration hearing, the Shop Steward clearly testified that the
grievance was filed because they believed that the existing MOU was being
Article 30, Section D states that “An alleged
violation of the terms of a memorandum of understanding shall be subject to
the grievance-arbitration procedure."
This is different than Article 30, Section C, which relates to the
lack of agreements while negotiating the MOU.
Because of this the arbitrations decisions presented by Management
regarding "impasse" are
not on point.
In this case the Union states that Management is in
violation of Item 4 of the Memorandum of Understanding by not allowing the
employees to bid the entire 52 weeks during the first round bidding. Regardless of the merits of their contentions, these issues
are being raised as a violation of the MOU under the grievance procedure,
which is allowed under the National Agreement.
Therefore the matter is properly before the
It is Management’s position that because the
Huntington Park Post office has excluded the first three weeks in December
from the annual vacation bidding procedure in the clerk craft for the past
10 years and possibly beyond that this is an established “past practice”
which should be considered part of the MOU in question.
As Management has noted in the decisions presented
to the Arbitrator “Almost three decades ago, the parties own Richard
Mittenthal set forth the preeminent instruction of the topic of past
practice, and nothing since has surpassed its insightfulness and wisdom ,
although others have borrowed heavily from it.” USPS and NALC and the
APWU, Case NO H&N-4U-C 3766, Carlton Snow Arbitrator (1990)
“Arbitrator Mittenthal set forth the virtually
universally accepted tests of a past practice when he asked if it has 1)
clarity and consistency; (2) longevity and repetition;(3) acceptability; and
(4) mutuality. (See, Mittenthal, “Past Practice and the Administration
of Arbitrators, 30, 32-33 (1961). Ibid, at page 22.
In this case, the parties acknowledged that for a
number of years the employees of the Huntington Post Office were aware that
the entire month of December was excluded from the annual leave bidding
process. When Mr. Yamaguchi
became Postmaster in 1991 he established an informal agreement to include
the weeks of Christmas and New Years. The
Postmaster testified that the Union did not want to put verbiage in the MOU
but preferred that it be just be put into practice.
However during the entire time of Mr. Yamaguchi's
tenure written notification of the annual leave selection process was posted
on the board or communicated with the then employees.
During this entire time the employees, the union and management were
aware that the first weeks in December prior to Christmas was not included
in the annual selection process. Ms.
Tatenco, the former
Shop Steward and the initiator of the Grievance admitted that the first part
of December has “always been blocked out.”
Therefore Arbitrator Mittenthal's
first prong of “clarity and consistency” has been met.
As it pertains to “longevity and repetition”,
the evidence presently clearly points out the weeks in December with the
exception of Christmas and New Years has been unavailable for bidding under
the annual vacation leave selection process since 1992.
Prior to that all of December was excluded.
Concerning “Acceptability”, the employees and
the union have known about the unavailability of these weeks for years. They also knew
that these weeks were not expressly excluded in the MOU and did not make any
attempt to negotiate them or negotiate the inclusion.
In fact the Shop Steward admitted that a grievance had never been
filed on this issue in prior years. She
testified that "everyone knew that it was just a waste of time to
attempt to put in for December because it would not be approved."
While this may not represent total acceptability on
their part and may in this arbitrator’s opinion resemble “acquiescence”,
the fact that the Union did not grieve this matter over a period prior to 1991
and for ten years thereafter can be deemed to be some form of acceptability.
The same can be said of "Mutuality."
The Postmaster testified that in 1991 he negotiated with Union the
issue of annual leave in December.
As a result of those meetings he began to allow annual leave during the
Christmas and New Year Week. Since
that time, there have been at least five opportunities to open negotiation on
this issue as a part of Local Implementation process and therefore the MOU.
In addition, the Union could have raised it in other less formal
meetings. However this was not
done because in this Arbitrator’s opinion there was a meeting of the minds
on this subject dating back to 1991 when Mr. Yamagughi became Postmaster. Therefore there was mutuality.
Therefore I find as did Arbitrator Snow in the
aforementioned case. Namely that
on these facts. It can be implied
from the parties’ conscious acquiescence in these long standing practices
that there was mutual agreement". In
this instance to the continuance of the practice of making the weeks of
December with the exception of Christmas and New Years unavailable for
The parties therefore are bound by this practice
until and unless it becomes part of discussions under the procedures outlined
under Article 30 of the National Agreement.
The Grievance is denied.
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