Nicholas Duda, Jr.
Date: 6/4/2000
Issue: Did the reassignment from
the Fremont Post Office to the Toledo Post Office violate her rights under Article 19, and the ELM, Sections 546.41 and 434.51? If so, what is the proper remedy?
Union Position:
The service
had no cause or need to send Grievant to work at Toledo. She had been working
at least 35.5 hours a week on her own string of routes, and she could have increased that to 40 hours or more if she had been
provided a cart, as she was on her return from Toledo in September 1997. Even
without the cart, the 4.5 hours aside from her casing and delivery were still available for Grievant.
Here the Service
disrupted her work life and required her to drive more than 1 ½ hours daily just to commute to work. Even more important the
new assignment caused a relapse in her physical condition.
For violating
the cited ELM sections the Service should be required to make Grievant whole. That
would include paying out-of schedule pay and/or any other remedy the Arbitrator deems appropriate. The Union submits three arbitration decisions for the Arbitrators decisions that support granting the requested
remedy.
Postal Service Position:
The union failed
to prove any violation of Article 13 or ELM Section 546.1.
The fact that
extensive overtime was worked by Carriers is not relevant to grievant’s situation or claim. The Union failed to prove that there was adequate work that Grievant could perform at Fremont. Sometimes Grievant did not have enough work to keep busy.
Under article
3, Management has a right to maintain efficiency. Here maintaining efficiency
required that she be transferred to Toledo.
The possibility
of her using a cart was not mentioned until the end of her assignment at Toledo.
In any event,
out-of-schedule pay cannot be given, because ELM Section 434.622 provided “eligible employees are not entitled to ‘out-of-schedule’
premium…when assigned to light duty according to the provisions of the collective bargaining agreement or as required
by the Federal Employee Compensation Act…”
There was no
evidence of her entitlement to overtime.
The Arbitrator
should follow the decision in the cited decision by Arbitrator Schedler (S4C-3A-C-11732).
The Arbitrator
is limited to the terms of the Agreement by Section 15.4A6. Therefore where no
violation is shown he cannot provide a remedy.
The grievant
should be denied.
AWARD:
It is the finding of the
Arbitrator that adequate work continued to be available for Grievant at her Fremont Station after June 14, 1997; by reassigning
Grievant to work outside her regular work locations, tour of duty and craft effective June 14, 1997 the Service violated her
rights under ELM Section 546.14. He also finds that the appropriate remedy for
the wrongful reassignment, which caused Grievant additional physical pain, disruption in her personal life and inconvenience,
is the payment of an out-of-schedule premium. Accordingly, the grievance is granted. Therefore, the Service is directed to pay Grievant one half time her hourly rate for
each hour she worked from June 14, 1997 until she returned to the Fremont Post Office on or about September 13, 1997. The Arbitrator retains jurisdiction solely to adjudicate any issue concerning compliance
with this Award.
