NALC Branch 100 203-C-00
Arbitrator: Nicholas Duda, Jr.
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?
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
POSTAL SERVICE POSITION:
concedes as it did in Step 2 that several of the ODL Carriers should have been assigned to overtime instead of the non-ODL
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.
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.
Hours of Administrative