C98N-4C-C 00194553

NALC Branch 100 203-C-00

Arbitrator:  Nicholas Duda, Jr.

Date: 6/5/02

Issue:  were the overtime assignment on June 30, 2000 to full-time carrier not on the overtime desired list a violation of Article 8.5 of the Labor Agreement?  If so, what remedy (ies) is/are appropriate?

 NALC POSITION:

     Some ODL Carriers on the 10 or 12-hour lists and/or the Part-Time Flexible Carriers could have performed the assignments forced on the non-ODL Carriers.  That action of forcing the non-ODL Carriers to work overtime deprived ODL Carriers of the overtime work and so they should be paid compensation for the hours they lost and five hours of administrative leave should be given to four ODL Carriers required to work overtime.  In the Union’s opinion, the remedy requested for the non-ODL Carriers is punitive as claimed by the Service but even it were so regarded, it should be granted pursuant to Arbitrator DiLauro’s case where his award was “IF management persists in its practice of utilizing non-ODL carriers under the circumstances described herein, a monetary remedy may be awarded in the future”.

POSTAL SERVICE POSITION:     

     The Service concedes as it did in Step 2 that several of the ODL Carriers should have been assigned to overtime instead of the non-ODL Carriers. 

     As to any remedy for non-ODL Carriers, they are not entitled to any remedy.  They were paid the contractual rate of time and a half for those hours.  The remedy requested of  administrative leave is not provided in the Labor Agreement, so the Arbitrator cannot grant that remedy, which amounts to punitive improper punishment.  While some arbitrators have provided a punitive remedy, even they have recognized that it cannot be granted except in very limited circumstances where the employer’s behavior was wrong, intentional, and especially egregious.  Here the mistakes were unintentional.

     Under the circumstances of this case, I am actually awarding a compensatory award.  Here the non-ODL Carriers were deprived of the time away from work” …they had shown they wanted by not signing the ODL lists”.  This remedy is consistent with the Arbitrator’s inherent authority to restore to aggrieved employees what the Service improperly took away from them.  This conclusion is compatible with the position stated in all three of the arbitration decisions cited by the Service itself.  For example, Arbitrator Snow stated in WIC-5F-C 4734, “The expectation interest of the party in contract cases generally has been measured by the actual worth that performance of the agreement would have had for the individual”.  Here if the Service had lived up to its commitment in the contract, the non-ODL employees would have had time away from work and not been required to work overtime.

AWARD:

     The grievance is sustained.  The Service is directed “to pay --- 1.0 hours at overtime rate, --- .86 hours at the penalty overtime rate, --- .1.0 hours at the penalty overtime rate, and --- 1.25 hours at the overtime penalty rate”.  Furthermore, the Service is directed to allow administrative leave to be used during the next 12 months in the amount specified to the following employees.

Name                           Hours of Administrative Leave

…                                1

…                                2

…                                1

…                                1