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Title: United States Postal Service and American Postal Workers Union
Date: March 26, 2002
Arbitrator: Fred D. Butler
Citation: 2002 NAC 130

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: Huntington Park

USPS Case : F98C-4F-C 01037794

APWU Case No: HP 600TS

BEFORE:                           Fred D. Butler, Arbitrator

APPEARANCES:
For the U.S. Postal Service:



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


David E. Renshaw
National Business Agent
APWU-AFL-CIO
416 Stoneman Avenue, #A
Alhambra, CA 91801
Place of Hearing: Huntington Park, California
Date of Hearing: February 28, 2002
Date Record Closed: February 28, 2002
Date of Decision: March 26, 2002
  Relevant Contract Provision: Article 30
Contract Year: 1998-2000
Type of Grievance: Contract

Award Summary:

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 National Agreement.

FRED D. BUTLER,
Arbitrator


 

I.

INTRODUCTION

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.

 The 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 ("Union").

Representing Management was Dan Castrellon, Labor Relations Specialist.  Appearing as a witness for Management was Henry Yamaguchi, Postmaster, Huntington Station.

Representing the Union was David Renshaw, Advocate.  Appearing as witnesses for the Union was Sylvia Tatenco, Former Shop Steward.

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 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.

II.

ISSUE PRESENTED

The      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.

III.

RELEVANT CONTRACT PROVISIONS AND REGULATIONS

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

ARTICLE 30
LOCAL IMPLEMENTATION

A.  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 understanding.

B. 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 National Agreement.

4.  Formulation of local leave program.

5.  The duration of the choice vacation periods. . .

D. An alleged violation of the terms of a memorandum of understanding shall be subject to the grievance-arbitration procedure. . .

IV.

STATEMENT OF FACTS

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 Tatenco)

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 Tatenco) 

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)

V.

POSITION OF THE PARTIES

Unions Position:

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.

Management’s Position

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

VI.

DECISION

A.  Arbitrability

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 violated. 

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 arbitrator.

B. Merits

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.  I agree.

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 bidding.

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.

AWARD

The Grievance is denied.

Dated: 


FRED D. BUTLER
Arbitrator

 

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