C009, j

REGULAR ARBITRATION PANEL

In the Matter of the Arbitration )

between j

GRIEVANT : Donald L . Felt

POST OFFICE : Westland, MI

UNITED STATES POSTAL SERVICE ) CASE NOS : C7N-4B-D 304C4N-4B-D 38172

and )NALC Case Nos : 3165 & 3076

NATIONAL ASSOCIATION OF LETTER )CARRIERS, AFL-CIO

BEFORE : Alan Walt

APPEARANCES :

For the U . S . Postal Service

For the Union :

ARBITRATOR

Zipporia SloanLabor RelationsRepresentative

Ronald Brown

Place of Hearing :

Date of Hearing :

Regional AdministrativeAssistant

Westland, MI

May 3, 1988

AWARD : THE GRIEVANCE IS GRANTED .

JUST CAUSE DID NOT EXIST FOR GRIEVANT'S RE-MOVAL AND IT IS HEREBY SET ASIDE AND HELDFOR NAUGHT . GRIEVANT FORTHWITH SHALL BE .REINSTATED AS A FULL-TIME REGULAR LETTERCARRIER WITH FULL BACK PAY, BENEFITS ANDSENIORITY .

Date of Award : June 24, 1988

Alan WaltARBITRATOR

SUITE 11130 HONEYWELL BLOC .

17515 W . NINE MILE ROAD

SOUTHFIELD, MICHIGAN 4B0]5

RECE AVEDJUN 2 7 1'988

Jack R. Seboif

ARBITRATION OPINION AND AWARD

This arbitration is pursuant to Article 15 of the 1984-87

National Agreement .

Grievant was employed 25 years and when discharged on October

9, 1987, was a full-time regular Letter Carrier . His discharge was

effected pursuant to a Notice of Charges - Removal (Veteran) dated

August 11, 1987 in which he was charged with expanding his field

time "no fewer than twenty-nine (29) occasions since May 18, 1987"

and that on at least 15 of those occasions, field time had been ex-

tended, without authorization, "by thirty ( 30) minutes to as much as

one hour and five minutes (1 :05)" . As a result of the alleged ex-

tensions, it was charged that it was necessary to use overtime which

was neither authorized nor required and to provide grievant with

auxiliary assistance which also was not required . More particularly,

the following dates and expanded field times are set forth in the

removal notice :

DATEEXPANDED FIELD TIME

( IN HOURS)

5/18/87 :555/19/87 1 :045/27/87 ::535/28/87 1 :006/09/87 :556/11/87 ::466/15/87 :576/29/87 :436/30/87 :397/01/87 :367/08/87 ::347/14/87 :417/17/87 :307/22/87 :338/04/87 :54

There is no indication that grievant had any problem in the

delivery of mail prior to issuance of a letter of warning dated

March 28, 1986 for "Failure to Maintain Schedule"' . Thereafter he

received two further warning letters for the same infraction, one

dated August 26, 1986 and the other dated September 3, 1986 . On

December 5, 1986, he was suspended for 4 days, as modified, for

"Expansion of Field Time" and he subsequently was suspended for

10 days, as modified, on February 19, 1987 for the same infraction .

Following grievant's initial assignment to Route No, . 8402 in

Wayne, Michigan, his scheduled field time, that is, the time al-

lotted for delivery of mail on the route, was established in 19''75

at 5 hours and 15 minutes based on an actual mail count . The al-

lotted field time has remained the same ever since, as have the

number of delivery locations or "stops" on the route . Over the

years, however, mail volume has increased from 30 to 40 percent,

mostly from the increased volume of circular and "marriage" mail,,

the latter being mail which does not contain individual addresses .

With the addition of "marriage" mail -- which is delivered on

grievant's route two times a week -- carriers now have three sep-

arate bundles of mail rather than the two (regular and flats) whichh

they previously delivered . When half the "marriage" mail is car-

ried, the field time on a route is extended by 5 to 10 minutes

while the time extension normally amounts to 10 to 15 minutes when

all of the "marriage " mail is delivered .

Over the period that grievant' s field time has expanded, his

supervisor informed him on "many occasions " that the additional

time was unnecessary . Grievant' s usual response was that "I'm just

taking as long as it takes me ." The supervisor reminded grievant

three or four times a week of the need to maintain his field schedule .

It was the supervisor's testimony that in regularly observing griev-

ant in the field, the carrier used too much time on porches before

inserting mail in mailboxes . It was the supervisor 's belief that

although that function should require 3 to 5 seconds , grievant "took

as much as 30 seconds" and that the additional time would have been

unnecessary had grievant properly "fingered" mail between delivery

locations .

On June 7 and October 21, 1986 and again on April 2, 1987,

grievant's supervisor performed a unit route review of his route . .

On June 7, grievant delivered approximately 11 linear feet of mail

in 5 hours and 20 minutes while on October 21, he utilized approxi-

mately 5 hours and 25 minutes in delivering 10 linear feet of mail ..

On both occasions, grievant carried "marriage" mail and used a

mail cart . His performance on both occasions was satisfactory .

However, his performance was "poor" on April 2, 1987 when he re-

quired in excess of 6 hours to deliver 11 .5 linear feet of mail .

When the supervisor called grievant's attention to the excessive

amount of time he was spending on porches during the April 2 unit

route inspection, grievant replied, "No, I'm not ." It was the

supervisor's testimony that the Employer was "losing" approximately

10 hours a week as the result of extended field time regularly re-

quired by grievant .

Grievant testified that since the field time on his route was

established in 1975 when there was no "marriage" mail, there has

been a substantial increase in mail volume on his route . He stated

that because he utilizes a mail cart, he was only able to "finger"

mail between the sidewalk and the porch of each residence , and that

he could not do so while climbing steps . For the last six or seven

years, he repeatedly has requested a route inspection involving an

actual mail count -- the same inspection initially used in estab-

lishing his allocated field time . Those requests have always been

denied . Following rejection of his last request for a special route

inspection in December of 1986, a grievance was filed which was

pending when he was discharged . Grievant said he tries to meet the

allotted field time but cannot do so, and that he has informed the

supervisor that "I would if I could ." He also testified that each

time he required additional field time , he obtained approval from

his supervisor for the extension . Further, on the two occasions

between May 18 and August 4 ; 1987 when overtime was worked, it

was authorized by the supervisor .

Pertinent provisions of the National Agreement read :

ARTICLE 3

MANAGEMENT RIGHTS

The Employer shall have the exclusive right,subject to the provisions of this Agreementand consistent with applicable laws and regu-lations :

A . To direct employees of the Employer inthe performance of official duties ;

B . To hire, promote, transfer, assign, andretain employees in positions within thePostal Service and to suspend, demote, dis-charge, or take other disciplinary actionagainst such employees ;

C . To maintain the efficiency of the oper-ations entrusted to it ;

D . To determine the methods, means, andpersonnel by which such operations are tobe conducted ;

ARTICLE 15

GRIEVANCE-ARBITRATION PROCEDURE

Section 4 . Arbitration

A . General Provisions

(6) All decisions of an arbitrator will befinal and binding . All decisions of arbi-trators shall be limited to the terms andprovisions of this Agreement , and in no eventmay the terms and provisions of this Agree-ment be altered , amended , or modified by anarbitrator . Unless otherwise provided inthis Article, all costs, fees, and expensescharged by an arbitrator will be sharedequally by the parties .

ARTICLE 16

DISCIPLINE PROCEDURE

Section 1 . Principles

In the administration of this Article, a basicprinciple shall be that discipline should becorrective in nature, rather than punitive .No employee may be disciplined or dischargedexcept for just cause such as, but not limitedto, insubordination, pilferage, intoxication(drugs or alcohol), incompetence, failure toperform work as requested, violation of theterms of this Agreement, or failure to observesafety rules and regulations . Any such dis-cipline or discharge shall be subject to thegrievance-arbitration procedure provided forin this Agreement, which could result in re-instatement and restitution, including backpay .

ARTICLE 19

HANDBOOKS AND MANUALS

Those parts of all handbooks, manuals and pub-lished regulations of the Postal Service, thatdirectly relate to wages , hours or working con-ditions, as they apply to employees covered bythis Agreement, shall contain nothing that con-flicts with this Agreement , and shall be contin-ued in effect except that the Employer shallhave the right to make changes that are notinconsistent with this Agreement and that arefair, reasonable , and equitable . This includes,but is not limited to, the Postal Service Manualland the F-21 Timekeeper' s Instructions .

The parties also cite the following regulations :,

Employee & Labor Relations Manual (ELM)

660 Conduct

661 Code of Ethical Conduct

661 .2 Congressional Code of Ethics for Govern- -ment Service

.21 The standards of conduct for all employ-ees of the United States have been stated byCongress in the Code of Ethics for GovernmentService . All postal employees are expected tofollow the standards quoted below .

Code of Ethics for Government Service .Any person in Government service should :

3 . Give a full day's labor for a fullday's pay ; giving to the performance ofduties earnest effort and best thought .

4 . Seek to find and employ more effi-cient and economical ways of getting tasksaccomplished .

666 USPS Standards of Conduct

666 .1 Discharge of Duties

Employees are expected to discharge theirassigned duties conscientiously and effectively .

666 .5 Obedience to orders

.51 Protests

Employees will obey the instructions of theirsupervisors . If an employee has reason toquestion the propriety of a supervisor 's order,the individual will nevertheless carry out theorder and immediately file a protest in writingto the official in charge of the installation,or appeal through official channels .

City Delivery Carriers Handbook (M-41)

110 RESPONSIBILITIES OF CARRIER

112 GENERAL RESPONSIBILITIES

112 .1 Efficient Service

Provide reliable and efficient service ..

112 .2 Diligence and Promptness

.21 Obey the instructions of your manager .

120 BASIC CARRIER DUTIES

122 STREET DUTIES

122 .1 Delivery and Collection.11 Deliver mail along a prescribed route,on a regular schedule ( see exhibit 1-3) .

130 DELIVERY AND COLLECTION RULES

131 .3 Actual Delivery

.33 Unless otherwise instructed by a unitmanager, deliver all mail distributed to yourroute prior to the leaving time for that tripand complete delivery within scheduled time .It is your responsibility to inform managementwhen this cannot be done .

131 .4 Reporting Requirements

.41 It is your responsibility to verbally in-form management when you are of the opinionthat you will be unable to case all mail dis-tributed to the route, perform other requestedduties, and leave on schedule or when you willbe unable to complete delivery of all mail .

Management of Deliver Services (M-39)

CHAPTER 2

MAIL COUNTS AND ROUTE INSPECTIONS

270 SPECIAL ROUTE INSPECTIONS

271 WHEN REQUIRED

Special route inspections may be required whenone or more of the following conditions or cir-cumstances is present :

a . Consistent use of overtime or auxiliaryassistance .

b . Excessive undertime .

c . New construction or demolition which hasresulted in an appreciable change in the route ..

d . A simple adjustment to a route cannot bemade .

e . A carrier requests a special inspectionand it is warranted .

f . Carrier consistently leaves and/or returnslate .

g . If over any 6 consecutive week period(where work performance is otherwise satisfac-tory) a route shows over 30 minutes of overtime

or auxiliary assistance on each of 3 days ormore in each week during this period, theregular carrier assigned to such route shall,upon request, receive a special mail countand inspection to be completed within 4 weeksof the request . The month of December mustbe excluded from consideration when determin-ing a 6 consecutive week period . However, ifa period of overtime and/or auxiliary assis-tance begins in November and continues intoJanuary, then January is considered as a con-secutive period even though December is omitted .A new 6 consecutive week period is not begun .

272 MANNER IN WHICH CONDUCTED

When special inspections are made because ofconditions mentioned in 271, they must beconducted in the same manner as the formalcount and inspection .

The Employer contends, among other things, that grievant's

refusal to adhere to his established field time constituted insub-

ordination in that he continually extended the field time although

repeatedly advised not to do so . Since he demonstrated his ability

to adhere to the allocated field time until some 14 months before

his discharge and since he was able to deliver his route within

that time frame on two occasions when unit route inspections were

conducted (June and October, 1986), the Employer submits his refusal

to deliver his route within the established field time was an in-

tentional act of insubordination . Suffice it to say that grievant

was not discharged for insubordination but rather for the unauthorized

extension of field time and for the unauthorized use of overtime .

While a letter carrier's intentional disregard of established field

times and his supervisor's repeated instructions to complete the

route within those times could constitute insubordination depending

on all the facts present, it is essential that the Employer charge

the carrier with that infraction . The removal notice in this case

does not include a charge of insubordination .

At the outset, it is essential to note there are no uniform

field times established for any letter carrier"s route . Those times

are established by management based on the job performance of the

carrier on his or her assigned route . As previously noted, g,riev-

ant's field time was established in September of 1975 following, his

assignment to the route which he carried until his discharge . It

also is necessary to observe that the use of so-called linear meas-

urements, more accurately entitled the Delivery Unit Volume Record-

ing System, can only give an approximation of the mail volume a

carrier is delivering . An actual mail count as provided in the.

Management of Delivery Services Manual (M-39) is the only accurate

method of determining actual mail volume on a particular route .

While linear measurements may be a valid management tool, they do

not substitute for a route inspection involving an actual mail

count -- especially when discipline may result .

From the record as a whole , it is this writer's conclusion

that grievant's job performance in the field may have been affected

by his repeated requests over a period of some six or seven years

for a route inspection involving an actual mail count . Althoughh

there is no reason to conclude his requests were wrongfully re-

jected, the onset of discipline charging him with the improper

extension of field time casts a different light on that issue ..

And when grievant, a long-term employe, continued to be disciplined

for the same infraction over a relatively short period of time,,

management should have entertained his request for a special route

inspection involving an actual mail count .

Management concluded, however, that a special route inspection

was not required because grievant was not satisfactorily performing

his job, that is, he intentionally was refusing to deliver his route

in the established field time . But §271 of the Management Delivery

Service Manual (M-39) does not require satisfactory job performance

before a special route inspection can or should be granted . Sub-

paragraph f of §271 states that a special route inspection may be

required when a carrier "consistently leaves and/or returns late ."

Certainly, grievant's job record reveals a pattern of consistent

late returns . A special route inspection may also have been re-

quired pursuant to §271g .

Grievant ' s last request for a special route inspection was

submitted in December of 1986 some 8 months prior to issuance

of the removal charges . Even after a grievance was submitted fol-

lowing rejection of that request, the Employer continued to discipline

him for expansion of field time . A 10 day suspension, as modified,

issued on February 19, 1987 and another suspension, subsequently

reversed through arbitration, was issued April 9, 1981 . Although

the grievance regarding a special route inspection was pending,

a third unit route inspection utilizing linear measurements none-

theless occurred on April 2, 1987 .

It is not this writer's function to pass on the validity of

the pending grievance regarding the special route inspection .

But it is necessary to question management's continued imposition

of discipline for expanded field time when that issue could havee

been determined with accuracy by means of a special route inspec-

tion . Under the particular facts of this case -- grievant's re-

peated requests for a special route inspection based on an actual

mail count rather than linear measurements and the Employer's con-

tinued issuance of discipline for the same infraction even after

a grievance was submitted over the refusal to grant the special

route inspection -- it cannot be found that just cause existed for

grievant ' s removal . For those same reasons , there is no basis for

the imposition of a lesser penalty .

AWARD

The grievance is granted .

Just cause did not exist for grievant'sremoval and it is hereby set aside andheld for naught . Crievant forthwithshall be reinstated as a full-time reg-ular Letter Carrier with full back pay,benefits and seniority .

Southfield , Michigan

June 24, 1988