Update, A Service of the Industrial Relations Department, Greg Bell, Director

Case Number: C00T-1C-C-02108179

Arbitrator: Patricia S. Plant

For the Union: Terry Martinez, National Business Agent

Award:

Article 38 MAINTENANCE CRAFT

Section 4. Posting

A. In the Maintenance Craft all vacant duty assignments shall be filled as follows:

1. When a vacant or newly established duty assignment is to be filled, the Employer shall post for a period of seven calendar days, a notice of intent that the duty assignment will be filled using the appropriate preferred assignment selection register and/or promotion eligibility register, except for, newly established positions as defined in Article 1. Section 5. Such positions shall be posted as they are created and assigned to the craft unit. A copy of the notice of intent shall be furnished to the local Union.

Section 5. Selection Methods

A. Preferred Assignment

1. The Employer will maintain and/or establish preferred assignment selection registers. During the first fourteen days in January of each year a notice advising the employees of the opportunity to submit changes in preferred assignment selections shall be posted on all official bulletin boards at the installation, including stations and branches, to assure that it comes to the attention of all employees eligible to submit forms.

2. The employee shall indicate preference(s) for any vacancy that may occur during that year, including tours and days off. Change in preferred assignment selections shall be submitted on or before January 31. If requested, an employee will be allowed to review the preferred assignment registers and the employee’s own preferred assignment selection form(s). If the employee does not submit a change in preferred assignment selections during this period, existing preferred assignment selections shall continues.

3. Newly established or vacant duty assignments shall be filled by senior employees on the appropriate preferred assignment registers. The relative standing for employees on the appropriate preferred assignment register shall be:

a. Employees by preferred assignment seniority who entered a particular occupational group and level in an installation prior to June 25, 1992, followed by

b. Employees by preferred assignment seniority who entered a particular occupational group and level in an installation or after June25, 1992.

4. All vacant or newly established craft duty assignments shall be filled from a preferred assignment register established on the basis of assignment selection forms submitted by Maintenance Craft employees.

5. Where a vacant or newly established duty assignment cannot be filled from an established preferred assignment register, and the assignment is to be filled by means of a promotion, selection shall be made from the appropriate promotion eligibility register.

6. An employee may submit a new or amended preferred assignment selection form in the following situations:

a. The employee is promoted;

b. The employee’s duty assignment is eliminated;

c. The duty assignment would result in the employee being assigned closer to the employee’s place of residence;

d. Because of substantiated medical or health reasons whereby continuation in the employee’s present assignment would be harmful;

e. Three times during each calendar year, an employment may submit additional preferred assignment selection forms. The times selected for submitting the additional preferred assignment selection forms shall be at the option of the employee.

7. When a part-time regular employee submits a preferred assignment form for a full-time regular position within the employee’s salary level and occupational group, the employee will be awarded the vacant duty assignment before promoting a full-time employee from a lower salary level and occupational group, or before any lateral transfer, providing that the part-time regular is senior to the full-time employee in the lower level.

Section 7. Special Provisions

E. Non-Bargaining Position Detail

Maintenance employees temporarily detailed to a non-bargaining unit position are ineligible to accept any preferred duty assignment(s) while so detailed. However, nothing contained herein shall be construed to preclude such temporarily detailed employees from voluntarily terminating a non-bargaining unit detail and returning to their craft position. Upon return to the craft position, such employees are eligible to accept any preferred duty assignment(s) for which they have properly bid.

The duty assignment of a full-time maintenance employee detailed to a non-bargaining unit position, including a non- bargaining unit training program, in excess of four (4) months shall be declared vacant and shall be posted and filled in accordance with the provisions of this Article. Upon return to the Maintenance Craft, the employee will become an unassigned regular. An employee detailed to a non bargaining unit position will not be returned to the craft solely to circumvent the intent of this provision. Form 1723 Notice of Assignment, shall be used in detailing employees to temporary no-bargaining unit positions. The employer will provide the Union at the local level a copy of Form(s) 1723 showing the beginning and ending time and date of all such details. Employees detailed to non-bargaining unit positions are not entitled to outside of schedule overtime (premium).

FACTS

On January 6, 2002, Employee Law submitted a 3971 for prime vacation (annual leave) February 24-March 3,2002 which was approved on January 8, 2002. On January 31, 2002, Employee Law submitted a preferred assignment multiple bid card, listing himself as in the Maintenance craft as a laborer custodian and choosing as his preferred bid assignment job number 425973. This was as a result of a Notice of Intent to Fill a Vacant Duty Assignment for the position in question dated January 31, 2002. On February 2, 2002, Employees Law asked to be taken off his higher level assignment (a 204b) on February 2, 2002 and returned to his craft position.

Employee Law worked as a custodian from for the week of February 2-February 8, 2004. On February 4, 2002, Employee Gamble, employed in the Maintenance Craft as a Laborer Custodian completed a preferred assignment multiple bid card listing as his first choice-job number 4257973 and as his second choice- job number 4596590.

Employee Law did not work in the craft as a custodian during the week of February 9-February 15, 2002. However, on February 14, 2002, he completed a 3971 requesting 8 hours of annual incidental leave from February 23-February 24, 2002. He did not work in the craft as a custodian during the week of February 16-22. However, Management assigned Employee Law to a 204(B) position to begin on March 2, 2002 and end on March 8, 2002. During the week of February 23-March 1,2002, Employee Law was on annual leave. On an unknown date Employee Law was declared the successful bid or promotion candidate for job 4257973 effective on February 23, 2002. So while on annual leave, Employee Law became the successful bidder for a craft position known as job number 4257973.

On an unknown date in March 2002, Management solicited the craft for 204(B) Managers. During the Week of March 2-March 8, 2002, Employee Law was off on March 2 and 3 which means that he could not have worked his 204 B Maintenance assignment per the assignment order and if he did work March 4,5, 6 and 7 he could not have worked both as a custodian on Tour 1 as per the Maintenance Work Schedule for the Week beginning March 2, 2002 and ending March 8, 2002 and as a 204 B Maintenance per the assignment order simultaneously. Additionally, as a custodian he was off on March 8, 2002 as a custodian but was a 204B per the assignment order. For this latter period, it may be theoretically possible that he could be off as a custodian but on as a 204B manager. However, since Management presented no case in chief, there is nothing to support this theory.

On Thursday, January 31st, Charlie Cutter posted the duty assignment of custodian Chuck law for bid as obligated by Article 38.7.E, due to his extended contiguous [sic] assignment to higher level. On Sunday, February 2nd, Chuck Law requested to be removed from higher level to be able to bid on his preferred duty assignment. As stated by Article 38.7.E, he has a right to do so. However, it also states that “an employee detailed to a non-bargaining unit position will not be returned to the craft solely to circumvent the intent of this provision.” It is obvious that this was the case, when on February 2 1st, 2002, nineteen days later, an assignment order was completed and signed by Management and Chuck Law, assigning Chuck Law to higher level starting March 2nd, 2002. A plant wide posting requesting 204B managers during the month of march was posted on the Maintenance board March 1st. Chuck law’s assignment order for 204 B was approved prior to this posting, proving that he never left the program and that his letter of termination was just a formality. Also, prior to working higher level detail, Chuck Law had not worked a single day in his new assignment, which was rewarded (sic) effective February 23,2002. Management violated Article 38.7 E., thereby improperly assigning Chuck Law as the successful bidder for duty assignment #4257973 instead of properly declaring Sam Gamble as the successful bidder.

As remedy the Union requested that Employee Gamble be made whole for all entitlement including being properly assigned to duty assignment #4257973 and being paid out of schedule premium for all hours that he was made to work outside of the aforementioned duty assignment.

This Grievance denied at Step 1 was denied at Step 2 based on Article 38.7.E. in its Step 3 denial, Management stated it relied on 38.7.E.

Did the United States Postal Service violate Article 38.7.E of the Agreement when Job ID# 4257973 was awarded effective February 23, 2002? If so, what shall the remedy be? The Union Position:

The Union contends that Management allowed Employee Law to circumvent the provisions of Article 38 in its award of job number 4257973.

Management chose not to make a case in chief presentation, which is its right to do so. It also came to the attention of this Arbitrator that Employee Law was available for testimony but since Management decided not to put on a case in chief, he was not called which meant he was unavailable to this Arbitrator for testimony concerning his actions. Management has chosen to present this Arbitrator with the moving papers and Management award citations. The Union has made a prima facia case for which Management has failed to assume its shifted burden of proof and persuasion. The Grievance is sustained. Employee Gamble is to be paid out of schedule premium for all hours he was made to work outside of his duty assignment Job ID# 4257973 for the period to begin on March 8, 2002 through September 16, 2004 and made whole for all entitlements for that same period. He will be properly assigned to Job ID# 4257973 on or before September 16, 2004.

The Grievance is sustained. Employee Gamble will be paid out of schedule premium for all hours he was made to work outside of his duty assignment Job ID #425973 for the period to begin on March 8, 2002 through September 16, 2004 and made whole for all entitlements for that same period. He will be properly be assigned to Job ID #4257973 on or before September 16, 2004. This Arbitrator will retain jurisdiction for the limited purpose of resolving any issues and questions concerning remedy.


	Arbitrator: Preferred Duty Assignment Awarded to 204-B Circumvented Contract

	Summary: The issue in this case involved the Postal Service awarding a Preferred Duty Assignment to an employee detailed to a non-bargaining unit position (204-B). The National Agreement prohibits awarding an employee detailed to a nonbargaining unit position unless the employee voluntarily returns to the craft. It also provides that the employee detailed to a nonbargaining unit position will not be returned to the craft solely to circumvent the intent of this provision. In this case the Postal Service permitted an employee detailed to a nonbargaining unit position to return to the craft in order to bid for and receive a preferred duty assignment. The arbitrator found that actions of the grievant were such that his return to the craft was accomplished to circumvent the intent of Article 38 Section 7.E. He then sustained the grievance by awarding out of schedule premium to the maintenance employee that should have been awarded the Preferred Duty Assignment for all hours he was made to work outside of his duty assignment for the period to begin on March 8, 2002 through September 16, 2004 and made him whole for all entitlements for that same period. He will be properly be assigned to Job ID #4257973 on or before September 16, 2004. Finally, he awarded the grievant the Preferred Duty Assignment in question. Gary Kloepfer Assistant Director "A" (202) 842-4213 (202) 251-1495 Cell (202) 289-3746 FAX note: This issue applies to all crafts

	Update, A Service of the Industrial Relations Department, Greg Bell, Director Case Number: C00T-1C-C-02108179 Arbitrator: Patricia S. Plant For the Union: Terry Martinez, National Business Agent Award: Management chose not to make a case in chief presentation, which is its right to do so. It also came to the attention of this Arbitrator that Employee Law was available for testimony but since Management decided not to put on a case in chief, he was not called which meant he was unavailable to this Arbitrator for testimony concerning his actions. Management has chosen to present this Arbitrator with the moving papers and Management award citations. The Union has made a prima facia case for which Management has failed to assume its shifted burden of proof and persuasion. The Grievance is sustained. Article 38 MAINTENANCE CRAFT Section 4. Posting A. In the Maintenance Craft all vacant duty assignments shall be filled as follows: 1. When a vacant or newly established duty assignment is to be filled, the Employer shall post for a period of seven calendar days, a notice of intent that the duty assignment will be filled using the appropriate preferred assignment selection register and/or promotion eligibility register, except for, newly established positions as defined in Article 1. Section 5. Such positions shall be posted as they are created and assigned to the craft unit. A copy of the notice of intent shall be furnished to the local Union. Section 5. Selection Methods A. Preferred Assignment 1. The Employer will maintain and/or establish preferred assignment selection registers. During the first fourteen days in January of each year a notice advising the employees of the opportunity to submit changes in preferred assignment selections shall be posted on all official bulletin boards at the installation, including stations and branches, to assure that it comes to the attention of all employees eligible to submit forms. 2. The employee shall indicate preference(s) for any vacancy that may occur during that year, including tours and days off. Change in preferred assignment selections shall be submitted on or before January 31. If requested, an employee will be allowed to review the preferred assignment registers and the employee’s own preferred assignment selection form(s). If the employee does not submit a change in preferred assignment selections during this period, existing preferred assignment selections shall continues. 3. Newly established or vacant duty assignments shall be filled by senior employees on the appropriate preferred assignment registers. The relative standing for employees on the appropriate preferred assignment register shall be: a. Employees by preferred assignment seniority who entered a particular occupational group and level in an installation prior to June 25, 1992, followed by b. Employees by preferred assignment seniority who entered a particular occupational group and level in an installation or after June25, 1992. 4. All vacant or newly established craft duty assignments shall be filled from a preferred assignment register established on the basis of assignment selection forms submitted by Maintenance Craft employees. 5. Where a vacant or newly established duty assignment cannot be filled from an established preferred assignment register, and the assignment is to be filled by means of a promotion, selection shall be made from the appropriate promotion eligibility register. 6. An employee may submit a new or amended preferred assignment selection form in the following situations: a. The employee is promoted; b. The employee’s duty assignment is eliminated; c. The duty assignment would result in the employee being assigned closer to the employee’s place of residence; d. Because of substantiated medical or health reasons whereby continuation in the employee’s present assignment would be harmful; e. Three times during each calendar year, an employment may submit additional preferred assignment selection forms. The times selected for submitting the additional preferred assignment selection forms shall be at the option of the employee. 7. When a part-time regular employee submits a preferred assignment form for a full-time regular position within the employee’s salary level and occupational group, the employee will be awarded the vacant duty assignment before promoting a full-time employee from a lower salary level and occupational group, or before any lateral transfer, providing that the part-time regular is senior to the full-time employee in the lower level. Section 7. Special Provisions E. Non-Bargaining Position Detail Maintenance employees temporarily detailed to a non-bargaining unit position are ineligible to accept any preferred duty assignment(s) while so detailed. However, nothing contained herein shall be construed to preclude such temporarily detailed employees from voluntarily terminating a non-bargaining unit detail and returning to their craft position. Upon return to the craft position, such employees are eligible to accept any preferred duty assignment(s) for which they have properly bid. The duty assignment of a full-time maintenance employee detailed to a non-bargaining unit position, including a non- bargaining unit training program, in excess of four (4) months shall be declared vacant and shall be posted and filled in accordance with the provisions of this Article. Upon return to the Maintenance Craft, the employee will become an unassigned regular. An employee detailed to a non bargaining unit position will not be returned to the craft solely to circumvent the intent of this provision. Form 1723 Notice of Assignment, shall be used in detailing employees to temporary no-bargaining unit positions. The employer will provide the Union at the local level a copy of Form(s) 1723 showing the beginning and ending time and date of all such details. Employees detailed to non-bargaining unit positions are not entitled to outside of schedule overtime (premium). FACTS On January 6, 2002, Employee Law submitted a 3971 for prime vacation (annual leave) February 24-March 3,2002 which was approved on January 8, 2002. On January 31, 2002, Employee Law submitted a preferred assignment multiple bid card, listing himself as in the Maintenance craft as a laborer custodian and choosing as his preferred bid assignment job number 425973. This was as a result of a Notice of Intent to Fill a Vacant Duty Assignment for the position in question dated January 31, 2002. On February 2, 2002, Employees Law asked to be taken off his higher level assignment (a 204b) on February 2, 2002 and returned to his craft position. Employee Law worked as a custodian from for the week of February 2-February 8, 2004. On February 4, 2002, Employee Gamble, employed in the Maintenance Craft as a Laborer Custodian completed a preferred assignment multiple bid card listing as his first choice-job number 4257973 and as his second choice- job number 4596590. Employee Law did not work in the craft as a custodian during the week of February 9-February 15, 2002. However, on February 14, 2002, he completed a 3971 requesting 8 hours of annual incidental leave from February 23-February 24, 2002. He did not work in the craft as a custodian during the week of February 16-22. However, Management assigned Employee Law to a 204(B) position to begin on March 2, 2002 and end on March 8, 2002. During the week of February 23-March 1,2002, Employee Law was on annual leave. On an unknown date Employee Law was declared the successful bid or promotion candidate for job 4257973 effective on February 23, 2002. So while on annual leave, Employee Law became the successful bidder for a craft position known as job number 4257973. On an unknown date in March 2002, Management solicited the craft for 204(B) Managers. During the Week of March 2-March 8, 2002, Employee Law was off on March 2 and 3 which means that he could not have worked his 204 B Maintenance assignment per the assignment order and if he did work March 4,5, 6 and 7 he could not have worked both as a custodian on Tour 1 as per the Maintenance Work Schedule for the Week beginning March 2, 2002 and ending March 8, 2002 and as a 204 B Maintenance per the assignment order simultaneously. Additionally, as a custodian he was off on March 8, 2002 as a custodian but was a 204B per the assignment order. For this latter period, it may be theoretically possible that he could be off as a custodian but on as a 204B manager. However, since Management presented no case in chief, there is nothing to support this theory. On March 8, 2002 the Union filed a grievance contending: On Thursday, January 31st, Charlie Cutter posted the duty assignment of custodian Chuck law for bid as obligated by Article 38.7.E, due to his extended contiguous [sic] assignment to higher level. On Sunday, February 2nd, Chuck Law requested to be removed from higher level to be able to bid on his preferred duty assignment. As stated by Article 38.7.E, he has a right to do so. However, it also states that “an employee detailed to a non-bargaining unit position will not be returned to the craft solely to circumvent the intent of this provision.” It is obvious that this was the case, when on February 2 1st, 2002, nineteen days later, an assignment order was completed and signed by Management and Chuck Law, assigning Chuck Law to higher level starting March 2nd, 2002. A plant wide posting requesting 204B managers during the month of march was posted on the Maintenance board March 1st. Chuck law’s assignment order for 204 B was approved prior to this posting, proving that he never left the program and that his letter of termination was just a formality. Also, prior to working higher level detail, Chuck Law had not worked a single day in his new assignment, which was rewarded (sic) effective February 23,2002. Management violated Article 38.7 E., thereby improperly assigning Chuck Law as the successful bidder for duty assignment #4257973 instead of properly declaring Sam Gamble as the successful bidder. As remedy the Union requested that Employee Gamble be made whole for all entitlement including being properly assigned to duty assignment #4257973 and being paid out of schedule premium for all hours that he was made to work outside of the aforementioned duty assignment. This Grievance denied at Step 1 was denied at Step 2 based on Article 38.7.E. in its Step 3 denial, Management stated it relied on 38.7.E. ISSUE: Did the United States Postal Service violate Article 38.7.E of the Agreement when Job ID# 4257973 was awarded effective February 23, 2002? If so, what shall the remedy be? The Union Position: The Union contends that Management allowed Employee Law to circumvent the provisions of Article 38 in its award of job number 4257973. The Service Position: Article 38.7.E speaks for itself Decision: Management chose not to make a case in chief presentation, which is its right to do so. It also came to the attention of this Arbitrator that Employee Law was available for testimony but since Management decided not to put on a case in chief, he was not called which meant he was unavailable to this Arbitrator for testimony concerning his actions. Management has chosen to present this Arbitrator with the moving papers and Management award citations. The Union has made a prima facia case for which Management has failed to assume its shifted burden of proof and persuasion. The Grievance is sustained. Employee Gamble is to be paid out of schedule premium for all hours he was made to work outside of his duty assignment Job ID# 4257973 for the period to begin on March 8, 2002 through September 16, 2004 and made whole for all entitlements for that same period. He will be properly assigned to Job ID# 4257973 on or before September 16, 2004. Based on the foregoing, the Grievance is sustained. AWARD: The Grievance is sustained. Employee Gamble will be paid out of schedule premium for all hours he was made to work outside of his duty assignment Job ID #425973 for the period to begin on March 8, 2002 through September 16, 2004 and made whole for all entitlements for that same period. He will be properly be assigned to Job ID #4257973 on or before September 16, 2004. This Arbitrator will retain jurisdiction for the limited purpose of resolving any issues and questions concerning remedy.