The following is an arbitration award regarding excessing from the clerk craft within/outside of the installation in Oakland. The employees were excessed in 2009 to some locations in the USPS Bay Valley District, some locations as far north as Sacramento (Calif.) and as far south as Fresno, (Calif). Also, the Union’s position is that those employees who were separated or resigned should be returned to work and made whole and those employees who opted to become Part-Time Flexibles (PTFs) in other locations  and Part-Time Regulars (PTRs} in Oakland should be made whole.

The arbitrator ruled that the Comparative Work Hour Report was flawed and ordered that the employees’ retreat rights be activated, including the ones that were not excessed out of the installation, but to another craft, and made whole.

What makes this case interesting is that it involved over 40 postal employees.

I do not have a rough estimate as to what this will cost the USPS– but the cost could be astronomical because it covers the period of early 2009 to the present and involve over 40 employees.

Fredric Jacobs
APWU President
Oakland Local #78

The facts of that matter is as follows:

On May 23, 2008, Management provided to the Union a Work Hour Impact Report indicating that 30 employees were involuntarily excessed outside of the installation.The Union did not accept the conclusions of the impact report and requested a Comparative Work Hour Report for the Bay Valley Performance cluster.

On August 10,2009 the Union was provided a Comparative Work Hour Report (CWHR)for the Oakland Wide Installation dated 9/05/09 generated due to the involuntary excessing of thirty (30) employees’ outside the installation on 4/25/09.

This report was generated in accordance with Article 12.4.C. of the National Agreement which states:

When employees are excessed out of their installation. union at the regional level may request a comparative work hour report of the losing installation sixty days after the excessing of such employees.

If the report does not substantiate that business conditions warranted the actions taken such employees shall have their retreat rights activated. If the retreat rights are denied, the employees have the right to the grievance arbitration procedure.

The revised Comparative Work Hour Report covered the 30 days before excessing 3/24/09 through 4/24/09 and the 30 days period. after excessing from 4/25/09 through 5/24/09 The total hours reported prior to excessing were reported as 125317 and the total hours reported after excessing was 119032. \

On July 31, 2009, the Union requested Hourly Total Reports beginning with pay period 3/2009 through pay period 15/2009 for all Clerk Craft employees in the Bay Valley District/Oakland Bid installation and all documentation used to generate the detailed figures noted within the revised impact statement dated 7/16/09. Management did not provide the information requested. at that time.

The Union prepared a spread sheet listing of all hours recorded per the Comparative Work Hour report, Oakland Plant Clerk and Craft hours, Station & Branches Clerk Craft Work Hours and TACS Clerk Craft Work hours

The Union then developed a work graph for Full Time Regular Employees (FAR) comparing the CWHR and TACS Report, FTR Overtime Graph comparing CWHR vs. TACS Reports; Oakland Plant TACS;

Estimated. employee dollar reports prior to excessing and after excessing and a Stations & Branches TACS Estimated employee Dollars report Stations « Branches TACS. (JT. Ex. 8 E, F, H & J) According to the TACS data” the total of work « overtime prior to excessing was 135322 and the’ total of work & overtime after the excessing was 133908, indicating a decrease in work hours of 1305 and a decrease in Overtime by 28.c Immediately thereafter the Union filed a series of grievances relative to crossing crafts & Supervisors performing bargaining unit work, !limited Duty mail handlers detailed to Clerk work, Clerk Senior listing and Safety issues

On or about August 18, 2009 the Union filed a Step One Grievance in this matter. There is no record of a Step one decision being rendered. After several extensions  the Union filed a step 2 Grievance on 11/18/2009 alleging that the Comparative Work Hour Report generated by the Postal Service is erroneous and in violation of the contract. The Onion contends that the Work hour for the Oakland bid cluster was not reported, the Casual hours were not reported, that ~TR hours were not accurately reported and the crossing craft hours and Supervisor performing bargaining unit work hours not reported or included.

On or about February 2010 the Grievance was denied by Frank Grimsly MDO based on Management rights and their contention that APWU’s argument is not supported by the express terms of the National Agreement, and that there is no evidence of contractual violation. Finally that the Union failed to bargain in good faith, an interpretative issue, untimely filing and an unsupported remedy.

The Union filed additions and corrections on March 4, 2010 and filed a Step 3 grievance on March 11, 2010. The grievance was denied on 3/11/2010. The matter W6,S referred to Arbitration on August 31,2010.

The substantive issue presented to the Arbitrator at that time was:

Was the revised Comparative Work hour report provided to the Un~on on August 10, 2009 flawed and incomplete? If so, what shall the remedy be?

After hearing the evidence and testimony the arbitrator determined that the CHWR submitted to the Union did not include all of the required information and excluded other information.Therefore, it was flawed.

The Arbitrator also determined that the remedy in this case becomes a complicated matter. The Union is not entitled to a blanket remedy. If after a review of the information submitted by the Union, it can be shown that the effect of the corrected CHWR had a effect on the overall work hours such that excessing was not warranted, the Contract in this matter affords the affected employees with retreat rights. In addition those employees would be entitled to make whole remedies affected by the excessing.

Any remedy has to take into account the remedies already provided in the Harris arbitration in order to avoid duplication and/or unlawful enrichment. In addition the Union has indicated that certain other actions voluntary or otherwise has occurred.

These other actions must be factored in a final remedy.

On November 19, 2013, the arbitrator remanded the matter back to the parties with the following instructions:

The matter is remanded to the parties to review the work hours with all of the information required at the time of excessing. Without taking into account any other factors the CWHR Report shall be the determining factor in this analysis.

If it is determined that the CHWR does not warrant excessing, the parties shall develop a remedy for those affected in accordance with the contract.

The remedy shall be specific to each employee affected and can be a remedy proposed jointly or the postal service and the Union can submit competing remedies in the form of a letter brief, without cites to other awards and not to exceed 10 pages.

This document must be submitted to the within 30 days of receipt of this decision.

Arbitrator will retain jurisdiction in this until a final remedy award is determined.

After many months of delay, the parties was not able to reach agreement on the controlling facts or a remedy in this matter.

Therefore in accordance Article 12.4C, the Arbitrator issues the following final remedy:

That affected employees retreat rights be activated and the employees made whole including difference in salary level, night differential, Sunday premium pay and out of schedule overtime and premium pay,missed overtime, and holiday work opportunities and mileage.

That affected employees excessed out of the clerk craft as a result of Managements action here be returned to the Clerk craft and made whole in the same manner.

Fred Butler
Arbitrator