REGULAR ARBITRATION PANEL
Between: United States Postal Service
Grievant: Class
and National Postal Mail Handlers Union
Post Office: SLC, P&DC
Before: Eduardo Escamilla, Arbitrator
Case No: E98M-1E-C02070403
HW20701
Appearances: for U.S. Postal Service: James Hickok
for the Union: Woody Hendrickson
Place of Hearing: Salt Lake City, Utah
Date of Hearing: May 23, 2003
Date of Briefs: June 30, 2003
Date of Award: July 16, 2003
ISSUE: Did the Postal Service violate Article 7.1B of the National
Agreement by reverting two induction positions on December 15, 2001? If
so, what is the appropriate remedy?
ANALYSIS: The core issue of this case is the application of Article
7.1 B's restriction of the use of casuals "in lieu of" full time or regular
part time employees. This provision has been the subject of several National
Awards, the last award being the guiding voice in this decision. In Case
Q98C-C=00100499 (2001) Arbitrator Das reviewed the prior awards and from
these awards formulated the principles that are binding on this arbitrator.
Neither party attempts to argue the nuances of the Das Award. They both
accept the general concept and interpretations of the "in lieu of" proviso
of Article 7.1 B.
It is unnecessary in this case to remark on the history and rationale
in reaching the principles of Article 7.1 B. Because the parties dealt exclusively
with the issue of whether the "in lieu of" restriction was violated, none
of the other restrictions on the use of casuals need be discussed. In accord
with Arbitrator Das' award, the question to be resolved is whether casuals
were used as substitutes or in place of full time or part time regular employees
for long term duration rather than as a supplemental work force that augmented
career employees. This is a simplistic restatement of the Das Award which
is sufficient, as this case involves solely a quantitative analysis of the
evidence. .............
In this case, the casuals' clock rings show they were assigned to work
in the induction area. These records create a presumption that they perform
induction work, whether it be loading the vertical lift unit, or performing
traditional dock duties. This presumption is not rebutted by the admittedly
known fact that on occasion employees work outside of the clocked in location.
No direct testimony was introduced by the Postal Service to show what percentage
of time casuals, who clocked in to work in the induction area, did not work
in that area. The Union on the other hand presented evidence that casuals
did in fact worked in the induction area. In the absence of specific evidence
demonstration that casuals did not work in the induction area, I conclude
that the clock rings are sufficient to demonstrate that casuals worked in
the induction area. ...........
The import of the memorandum emphasizes that use of casuals as a supplemental
workforce is intended to provide a means for the Postal Service to meet its
operational goals for temporary or intermittent conditions. In the instant
case, the Union demonstrated that the casual workforce was not utilized because
of heavy workload. The Postal Service admitted that its use of casuals were
for the opposite reason, decrease of workload. The Postal Service rationale
is incongruent with the Downes Memorandum. Casuals are intended to be used
to cover unplanned, temporary increase of work. The use of casuals is not
intended as managerial tool for flexibility to cover normal workloads, as
admitted by the Postal Service in this case. ............
The statistical data is overwhelming. If it were not for the continuous
use of casuals and for the amount of weekly hours they worked, the Postal
Service could not have met its normal workload demands. Casuals were not
being used to supplement the workforce; rather they were used in place of
career employees to perform normal workload.. .......................
As the Postal Service created the unascertainable situation, it must
bear the consequences of its actions that were violative of Article 7.1 B.
The Postal Service is directed to rescind the reversion of the two reverted
induction positions, re-post the positions for bid. If no full time employees
bid on the positions, it is further directed to convert two PTF employees
to full time status and assign them to the induction positions. This remedy
is not extraordinary. The conversion of PTFs to full time status is a managerial
option, which the Postal Service refused to exercise which in turn violated
Article 7.1 B.
AWARD: The grievance is sustained. The Postal Service is directed
to re-post the two induction positions. If the no bids are made, the Postal
Service is directed to exercise its options of either assign unassigned full
time regular employees to the positions or to convert PTFs to full time status
and assign them to the induction positions.