Arbitrator by jennyyingdi

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									  IN ARBITRATION PROCEEDINGS PURSUANT TO ARTICLE XV OF THE

            NATIONAL AGREEMENT BETWEEN THE PARTIES

                     Case No . W8M -SC-C 21170
                    San Francisco , California



                                                              Oaa33
NATIONAL, POST OFFICE MAIL HANDLERS, )
LOCAL               302,           )



and             )   WILLIAM                  EATON

                                                 Arbitrator

UNITED STATES POSTAL SERVICE,


Local Class Action Grievance :
Uniform Allowance




APPEARANCES :



           FOR THE UNION :

                ALVIN S . GANT , President
                Local 302
                National Post Office Mail Handlers Union
                690 Market Street, Suite 509
                San Francisco , CA 94104


           FOR THE SERVICE :

                DENISE ALTER, Regional Labor Relations
                 Representative
                United States Postal Service
                850 Cherry Avenue, Room 819
                San Bruno , CA 94099-0176
                          ISSUE AND EVIDENCE


              This is an arbitration to determine the following

issue as stipulated to by the parties :

              Did the U . S . Postal Service , San Francisco,
              violate Article XV of the National Agreement
              when it failed to implement Supervisor Langlands'
              decision rendered on May 28 1981 , granting the
              Union's appeal?

Hearing was held in San Francisco on July 1 1983 . Following

presentation of testamentary and documentary evidence by both

parties, the matter was submitted to the Arbitrator for final

and binding determination upon oral argument at the close of

the hearing .

              The decision of Supervisor James Langlands referred

to in the statement of the issue involved payment of a uniform

allowance , rather than a work clothes allowance , to mail handlers

working on the docks at the San Francisco Air Mail facility . It

is agreed that for a number of years some mail handlers at the

facility were paid the $66 provided for a uniform allowance . How-

ever, other employees working under the same conditions at the

same facility received only the $33 provided for the work clothes

allowance .

              Under circumstances described below , a class action

grievance was brought by the Union on May 28 1981 .     The step one

hearing was held by Supervisor James Langlands , a 204E supervisor,

who granted the grievance at the time of the step one hearing .

              The Postal Service subsequently took the position that its

refusal to enforce the settlement r;as not a violation of the Nation-

al Agreement for reasons set forth below . The Union contends that
                                 -2-


such failure is a violation of the National Agreement, and

that the present Arbitrator should order the step one settle-

ment of Supervisor Langlands enforced .


National Agreement

                             ARTICLE XV

                   Grievance - Arbitration Procedure

     Section 2 .    Grievance Procedure--Steps
     Step 1 : ( a) Any employee who feels aggrieved must
     discuss the grievance with the employee ' s immediate
     supervisor within fourteen ( 14) days of the date on
     which the employee of the Union first learned or may
     reasonably have been expected to have learned of its
     cause .      .
     (b) In any such discussion the supervisor shall have
     authority to settle the grievance .   The steward or
     other Union representative likewise shall have auth-
     ority to settle or withdraw the grievance in whole or
     in part . No resolution reached as a result of such
     discussion shall be a precedent for any purpose .

     Section 3 . Grievance Procedure -- General
     (a) The parties expect that good faith observance,
     by their respective representatives , of the princi-
     ples and procedures set forth above will result in
     settlement or withdrawal of substantially all griev-
     ances initiated hereunder at the lowest possible step
     and recognize their obligation to achieve that end .

Employee and Labor Relations Manual

                   580 Work Clothes and Uniforms

     581 .2 Purpose and Scope

        .21 Uniforms .  Uniforms are provided to certain
     employees for the following reasons :

          b . To project an appearance to the public which
     is neat, professional and pleasing .

       .22 . Work Clothes . Work clothes are provided to
    certain employees :

          b.  When it is important that they be recognized
     and identified with the USPS, work clothes are provided
     for employees who work in public view .
                              - 3 -


                   582 Uniform Requirements

     582 .1 Employees Required to Wear Uniforms and Work
             Clothes

        .12 Contract Uniforms . The USPS has authorized
     uniforms for mailhandlers, custodial maintenance and
     vehicle maintenance employees in CAG A-G and CAG A-J
     post offices who meet certain criteria . To be eligible
     for uniforms under the contract uniforms program, em-
     ployees must (a) be in public view at least 4 hours a
     day for 5 days a week, or (b) be in public view not
     less than 30 hours per week in combined total time .
     Instructions relative to this program can be found in
     current instructions published by each region . Eli-
     gible employees are :

        a . Mail Handlers and Group Leaders (Mail Handlers) .
     Those assiagned to dock areas, platforms and other
     locations who meet the 4-hour-a-day or 30-hour -a-week
     criteria .

        .13 Work Clothes . This program is separate from
     the contract uniform program . It is for employees
     who are not presently eligible for uniforms or contract
     uniforms . Affected are certain mail handlers, mainten-
     ance employees, motor vehicle employees, and clerical
     employees involved full time in pouching and dispatch-
     ing units, parcel post sorting units, bulk mail sacking
     operations, and ordinary paper sacking units .

        .251 Determination of Eligibility . When an employee's
     eligibility for a uniform allowance is uncertain, the
     postmaster makes the decision . The postmaster notifies
     the employee of the decision before the employees buys
     items of uniform dress thinking that the USPS will pay
     for them .

Gordon Grievance

          Prior to the filing of the class action grievance

which led to Supervisor Langlands' contested decision, a similar

grievance had been filed on behalf of an individual mail handler,

James N . Gordon . Mr . Gordon appears to have been excessed from

Palo Alto to the Air Mail facility (AMP) sometime in 1979 . His

grievance was filed early in 1981 .
                             -4-


          Mr . Gordon had discovered that at least some of the

other mail handlers at the AMF were receiving the $66 uniform

allowance, while he had been receiving only the $33 work clothes

allowance . His grievance maintained that he was entitled to the

$66 uniform allowance . The steward who had filed the grievance,

Ronald J . Valdez, was notified by letter of April 27 1981 of the

step two decision . That decision was that the grievance was

denied for the reason that the grievant was not in public view

as required by the E&LR Manual to be entitled to the uniform

allowance . Evidence introduced by the Postal Service indicates

that Steward Valdez signed for receipt of this letter on May 3

1981 .

          The same grievance was subsequently denied at step

three as well, and was not processed to arbitration . According

to Union Local Vice President Willie Davis, the reason was that

by then the class action grievance had been filed, and the Union

felt that the individual grievance of Gordon would not settle the

class action matter .

          San Francisco MSC Director of Mail Processing Al Hines

testified that in discussing the Gordon grievance with the Union,

Union officials, including Union President Alvin Gant, were in-

formed of the reason for the denial of the Gordon grievance, that

he was not in public view so as to qualify for a uniform allow-

ance according to E&LR regulations . The Union reply, according

to Hines, was to state its view that "the public" included repre-

sentatives of airlines and shipping companies with whom mail
                              -5-

handlers came in contact at the AMP dock .

           Labor Relations Representative Affifah Fola Muhebi

testified that she, too, was present at meetings during which

the Union was clearly informed of the rationale of the Postal

Service in denying the Gordon grievance .    These witnesses em-

phasized that this information was conveyed to the Union prior

to the filing of the class action grievance involved in Super-

visor Langlands ' contested step one decision .

           Ms . Muhebi testified that it was as a result of the

Gordon grievance that the Postal Service discovered that a number

of mail handlers at the AMP were indeed receiving the $66 uniform

allowance when, in the opinion of the Postal Service, they did

not qualify for it .

           It was the testimony of Postal Service representatives

that, following this discovery, an effort was made to rectify the

situation in every case where the allegedly incorrect payment was

found . While there was Union testimony that some mail handlers

at the AMP continued to receive the $66 after approximately the

middle of 1981, no specific information in this regard was ad-

vanced to disprove the Postal Service claim that such payments

had been uniformly discontinued .

           However that might have been, it is undisputed that the

Union continued to pursue its contention that mail handlers at

the A P dock did qualify for the uniform allowance, and should be

so compensated .
                              -6-


Class Action Grievance

           Shop Steward Anderson Hines testified that he filed

the class action grievance requesting that all mail handlers at

the AMP receive the uniform allowance on May 28 1981 . He stated

that at the time he had been shop steward for approximately one

year, and was experienced in grievance filing, having filed some

ten to twenty grievances during that period . His testimony was

that the occasion for filing this grievance when he did was that

some employees had approached him stating they needed uniforms .

          Pressed on cross-examination as to whether he was aware

of the Gordon grievance, he replied that he was aware, and that

he knew that it had been denied at the time he filed the class

action grievance .

          Supervisor Langlands testified that he had been acting

as a 204B for approximately one year, and that he had handled two

prior grievances, each involving disciplinary matters, at the time

the class action grievance was presented to him on May 28 1981 .

He stated that he granted the grievance immediately, rather than

taking advantage of the five-day period for consideration provided

in the National Agreement, for the reason that, "I felt it was a

clear-cut case ."

          Langlands, who is a member of the Clerk Craft, testi-

fied that at the time he believed that the uniform and work clothes

allowances were the same thing ; that "the public" was anyone who

was'~ot on the clock", including airline employees ; and, that he

did not either consult with management or refer to any manuals or
                              -7-


handbooks prior to making his decision . Asked specifically

whether Union Steward Hines showed him the relevant E&LR provi-

sions, Langlands replied that Hines did have the "shop steward

book", by which he meant the National Agreement . Langlands

stated that no other grievances on the issue were discussed, and

that at the time he was not aware of the Gordon grievance or of

its having been denied .

           Asked what the reason was for his action, he replied

that he had simply felt that $33 was not enough for clothing in

what he considered a dirty job which also required meeting the

public .

           While the step one meeting is normally informal,

leading to an oral decision , the Union steward is often furnished

with a grievance worksheet by the Union which he brings to the

meeting . Steward Hines had such a worksheet at his meeting with

2043 Langlands , and requested Langlands to state in writing at

the bottom of the sheet his decision, which Langlands did . Lang-

lands explained : "I feel the work of a dirty nature . They are in

view of the public for an eight-hour tour with all of the differ-

ent airline rep come thru out the day . Private company delivery

mail all day long ."

           In regard to the practice of supervisors furnishing

written statements of the step one meeting , Union Vice President

Willie Davis testified that they do sometimes "initial the Union

worksheet ." In their testimony, both Davis and Hines denied that

the class action grievance had been filed by Hines at the instiga-

tion of Union officers . Hines did agree, however, that he had
                                 -8-


talked to Union officers about the matter prior to filing the

grievance .

              Asked whether it was true that he had not shown Lang-

lands the E&LR regulations, Hines replied that he had shown him

the "grievance book", by which he, also, meant the National Agree-

ment . He agreed that "the public" included airline employees who

bring mail over to the AMF dock, and that he had expressed this

belief to Langlands during the step one meeting .

              Ms . Muhebi testified that she refused to honor the

Langlands settlement at the step two stage . This was for the

reason that she believed the determination made by Lang-

lands to have been in conflict with the E&LR Manual ; that Lang-

lands had lacked information from management, and had not con-

sulted management prior to making his decision ; that Langlands

had been ignorant of the Gordon decision and of the postmaster's

stated position concerning the uniform allowance ; and, that to

have acknowledged the Langlands decision as valid would affect

the entire western region of the Postal Service .

              Ms . Muhebi also stated that, while it might have been

that Union officers had informed her of their intent to file a

class action grievance ,    she was surprised when they "went behind

the back of the postmaster" and filed it with an inexperienced

204B supervisor . She stated that she would have expected the

Union to file such a grievance with her, or with other management

officials aware of the Gordon grievance, and of discussions arising

out of that grievance .
                                 -9-


Present Grievance

          The grievance underlying the present arbitration is

the third grievance to have been filed concerning the uniform

allowance question . The first two were the Gordon grievance and

the class action grievance .     The present grievance was filed to

seek enforcement of the Langlands' decision arising out of the

class action grievance .

          According to the undisputed testimony of Ms . Muhebi,

this grievance was initially filed with her, as she would have

expected the class action grievance to have been in the circum-

stances . She stated that she took the unusual position of deny-

ing the grievance at step one by telephone, so that the matter

could be advanced in the grievance process as the Union desired .

          Director of Mail Processing Hines testified that he

denied the instant grievance at step two on the ground that the

issue had already been decided in the Gordon dispute . He also

denied it because, in his opinion, 2048 Langlands had been ignor-

ant of relevant facts upon issuing his step one decision, so that

management had the right to reverse that decision .


                               DISCUSSION

Union Argument

          The Union has proven that the United States Postal

Service violated Article XV of the National Agreement in failing

to implement Supervisor Langlands' decision . Article XV, Section 2,

Step l .b . makes it clear that Supervisor Langlands had the authority
to settle the May 28 1981 class action grievance .      He did so

with full- knowledge of the nature of the complaint, he was

aware of the position of the Union, and he offered logic and

reason for what he did .

              The contention of management that Supervisor Langlands

had no authority to settle the dispute must therefore be rejected .

The provisions of the National Agreement are clear ,     exact, and

leave no room for the present management position .

              Management has tried to muddle the issue by introducing

evidence as to whether or not mail handlers at the AMP were en-

titled to a uniform allowance .      That is not the issue in this

dispute . The only issue is whether management must implement the

Langlands ' decision concerning the uniform allowance class action

grievance .

              Failure of the Arbitrator to sustain the Union's posi-

tion in this dispute will circumvent the full intent of Article XV,

Section 3 . a . of the Agreement .   That article requires that both

parties, through good faith efforts, will attempt to settle or

withdraw grievances at the lowest possible step .

              A decision in this dispute adverse to the Union would

have a domino effect throughout the country by discouraging at-

tempts to resolve grievances at the lowest possible step .

              The Union was not " sneaking in back alleys ", as manage-

ment contends , by bringing the grievance as it did . On the contrary,

the Union told management that it was going to file a class action

grievance to supplement the grievance already filed on behalf of
one individual , Mr . Gordon .

           For these reasons it is submitted that the Arbitrator

should find for the Union, should order the Postal Service to

implement the decision of Supervisor Langlands, and should order

it to issue uniform allowances for the mail handlers at the Air

Mail facility .


Postal Service Argument

           The Postal Service does not question the authority of

Supervisor Langlands to settle a grievance at step one . The

problem is that, in this case, he did so mistakenly .

           He had inadequate knowledge of the procedure for making

such settlements ,    he was ignorant of the issue involved, he failed

to seek guidance from higher management ,    and he was unaware of

the E&LR Manual requirements .

           Even more significantly, the Union failed to disclose

to Supervisor Langlands relevant information which it had con-

cerning the Gordon case . That case had been well hashed over, and

the position of management was well known to the Union as a result .

          The issue presented in the Gordon case was exactly the

same as the issue presented in the class action case, even if the

remedy was different .    The position of management in both cases

was the same , and the Union well understood that position . The

position was that, according to the applicable E&LR regulations,

there was insufficient public exposure to justify granting the

uniform allowance .
          What the Union did in this circumstance was to sneak

through the back alley and file a grievance with a 204B super-

visor unfamiliar with the situation .    Management was frankly

surprised at this tactic .   In this circumstance ,   the testimony

of Steward Hines that he acted independently must be questioned .

          Hines admitted that he knew of the Gordon case, that

he knew of management ' s denial of the grievance in that case, and

that he knew that Langlands did not know of the case .      Hines ad-

mitted that the National Contract was all he had with him when

he approached Langlands , and that Langlands ,   as he testified him-

self, was unfamiliar with relevant E&LR provisions, as well as

being ignorant concerning the Gordon case .

          Moreover , Langlands freely admitted that his basis for

the decision at step one was derived from his point of view as

a craft employee .   He felt that the $33 work clothes allowance,

which he received in his position in the Clerk Craft, was insuf-

ficient for him, and he wanted to help fellow craft workers to

achieve what he believed to be a more adequate allowance .

          So far as meeting the "public" is concerned ,     Langlands

testified that to him the public was anyone who was "not on the

clock ." This clearly demonstrates that he was unfamiliar with

the E&LR requirements in that regard .

          Case No . C8M- 4M-C 5495, decided by Arbitrator William

Haber, confirms that mail handlers in the type of work involved

in this dispute do not meet patrons, as that term is defined in

the E&LR Manual , and that they are not entitled to a uniform
                                - U -


allowance as a result .

           - Case No . 8C-SK-D-12118, decided by Arbitrator Canton

J . Snow , recognizes that when there is a material misunderstand-

ing in making a grievance settlement, the law of mistake will

apply, and the settlement need not be confirmed or enforced .

Under that principle, it is clear that the Union in this case

cannot snap up the mistaken "bargain" offered by 204B Supervisor

Langlands .

              A decision in this dispute favoring the Union would,

as the Union suggests, have a domino effect, if one quite dif-

ferent from that suggested by the Union . It would require that

all similar facilities in the western region of the United States

Postal Service provide a uniform allowance to mail handlers not

in contact with the public as such public contact is defined in

the E&LR Manual .

              For these reasons, it is submitted that no violation

has occurred, that the action taken by management is appropriate

in line with the requirements set forth in the Employee and Labor

Relations Manual, and that the grievance should therefore be

denied .


Conclusions

           While the Union has steadfastly sought to maintain

that any consideration of the merits of the case is irrelevant,

it would appear to me that deciding the case without reference

to the merits would be deciding it in a vacuum .     Whether the
 Postal Service violated Article XV of the National Agreement in

 failing to implement Supervisor Langlands' decision of May 28 1981

 cannot be decided without considering the reasonableness of the

 Postal Service action in that regard, which in turn leads to a

 consideration of the merits of Supervisor Langlands ' decision .

              The Haber decision cited by the Postal Service,

C8M-4M-C 5495, is almost exactly on point . Arbitrator Haber

decided that, while mail handlers do come in contact with non-

postal employees such as truck drivers and others who bring mail

and stores to a dock area , that is "hardly what is meant when one

refers to the general public ."

              While one can understand the point of view of the mail

handler employees involved in this dispute, and even sympathize

with that point of view, the task of the Arbitrator under the

National Agreement is to implement the provisions of that Agree-

ment, and of the manuals and handbooks incorporated therein . The

conclusion reached by Arbitrator Haber clearly conforms to the

requirements of the Employee and Labor Relations Manual set forth

above, and with equal clarity applies to the facts of the present

dispute .

              For however many years some employees at the AMF may

have received the uniform allowance , it is uncontested that other

employees at the same facility did not receive the same allowance,

but received a work clothes allowance in half that amount . If one

wishes to argue equity in the case, that argument obviously cuts

both ways .
              The more important question is whether a decision of

a first line supervisor at step one must necessarily, and in all

cases, be accepted by his superiors under the requirements of

the National Agreement .     It does not require a great deal of anal-

ysis to demonstrate that to advance such a requirement would re-

sult in intolerable difficulties for both parties to the National

Agreement .

              The facts of this case illustrate the point . Supervisor

Langlands , although making his decision in unquestioned good

faith, was inexperienced , he failed to consult his superiors, he

was unaware of applicable regulations, he was unaware of the then

recently stated position of the Postal Service in the Gordon case,

and he admittedly approached his decision from the point of view

of a craft employee . While the latter stance may be quite under-

standable , it is not what the Postal Service has the right to

expect from a supervisory employee .

              In this dispute the Union itself comes halfway towards

recognizing the impossibility of its position by arguing that

Langlands acted in "full knowledge " of the nature of the complaint .

The Union thereby implicitly recognizes that full knowledge is re-

quired, while the evidence demonstrates that Mr . Langlands possessed

something quite far removed from anything which could be termed

"full knowledge " of the dispute confronting him .

              Similarly, the Union quotes language of Article Rv,

Section 3 . a . wherein the parties expect that "good faith obser-

vance"'by the representatives of the requirements of the grievance
procedure will make it possible that grievances be resolved at

"the lowest possible step" of the grievance procedure . This

language would clearly seem to imply that the lowest "possible"

step is one at which all substantive relevant considerations have

been dealt with . Manifestly that was not the case when Supervisor

Langlands rendered his decision at step one in the present dispute .

          Another way of looking at this dispute is to consider

what the position of the parties might be were a step one deci-

sion to be rendered, in ignorance of applicable contract provi-

sions, and in clear violation of the National Agreement . The

question is rhetorical, and the answer is obvious . Neither party

would wish to stand upon the principle that such a decision at

step one would be final and binding on either management or the

union .

          The Postal Service has cited the award of Arbitrator

Carlton J . Snow, 8C-SK-D-12118, which presented somewhat similar

circumstances . There also, the Union tried to "snap up the bargain"

when a lower level supervisor had signed a dispute settlement as a

result of a misunderstanding on his part, and in a situation in

which the Union knew of the supervisor's misunderstanding .

          What the facts of this case disclose is that a long-

standing benefit accorded to some employees, but not to others,

was accorded to them erroneously . While the disappointment of

any employee deprived of a long-standing benefit, even though er-

roneously granted, can be easily understood, the Employee and

Labor Relations Manual requirements leave no doubt as to the
merits of the dispute .    Nor does our further analysis leave

any doubt but that the Postal Service must have the right,

under the National Agreement , to refuse implementation of a

first step settlement which would have the effect of amending

the National Agreement or handbooks and manuals incorporated

therein .

            The Award is rendered accordingly .



                                AWARD

            The U . S . Postal Service, San Francisco ,   did not

violate Article XV of the National Agreement when it failed

to implement Supervisor Langlands' deci ion, rendered on

flay 28 1981, granting the Union ' s appeal . The grievance is

therefore denied .




                                         es
                                 William Eaton
                                 Arbitrator




July 18 1983

								
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