REGULAR ARBITRATION OPINION AND AWARD c-a q gooIn the Matter of the Arbitration ) Grievant : Class Action

(between the ) Post Office : Valparaiso , Indiana

(NATIONAL ASSOCIATION OF ) USPS Case No . : J98N-4J-C 02072688LETTER CARRIERS, AFL-CIO (

NALC DRT No . : 06-039313and the

UNITED STATES POSTAL SERVICE

BEFORE: Clarence R. Deitsch, Arbitrator

APPEARANCES:

For the Union : Mr. Jeff FultzLocal Business AgentNational Association of Letter CarriersBloomington, IN 47403

For the U.S. Postal Service: Mr. Michael G. SingletonLabor Relations Specialist125 South Street, Rm 405Indianapolis, IN 46206-9998

Place of Hearing: United States Post Office101 South BroadwayPeru, IN 46970

Date of Hearing : October 23, 2003

Date of Award : November 10, 2003

Relevant Contract Provisions : Article 10, Leave Sections 3 .D. Choice of Vacation Periodand 4.C. Vacation Planning ; Article 30, LocalImplementation , Section B4 and 12 ; Local Memorandum ofUnderstanding (LMOU) October 31, 2000-November 20,2001

Contract Year: 2001-2006

Type of Grievance: Contract Interpretation

Award Summary :

Whether the Postal Service violated ArticlelO and Article 30 of the 2001-2006 NationalA eement and Items 4, 9, and 10 of the Local Memorandum of Understanding when it deniedany annual leave time in excess of 10 to 15 continuous days during the choice vacation period?If so, what shall the remedy be? The record of evidence does establish a breach of the LMU perpast practice and custom. However, the Union failed to justify the remedy requested . Hence -the de minimis award

Award: GRIEVANCE SUSTAINED/ DE MINIMIS RELIEF ORDERED

Clare nce R. ei sch, bitrator C`)

DATE RECEIVEDNOV 18 2003

JAMES KOROLOWICZcc

DENIAL OF ANNUAL LEAVE UNDER THE 2000-2001LMO AS INTERPRETED THROUGH PAST PRACTICE

The Issues

DEITSCH, Arbitrator -- Whether the United States Postal Service violated Articles 10

and 30 of the 2001-2006 National Agreement and Items 4, 9, and 10 of the Local Memorandum

of Understanding when it denied any annual leave time in excess of 10 to 15 continuous days

during the choice vacation period? If so, what shall the remedy be?

JOINT EXHIBITS AND STIPULATIONS

1 . Joint Exhibit #1 : The 2001-2006 National Agreement between the United States Postal

Service and the National Association of Letter Carriers . AFL-CIO .

2. Joint Exhibit #2 : Dispute Resolution Team (DRT) #06-039313 Grievance Package .

3 . Stipulation #1 . The grievance is properly before the arbitrator .

4. Stipulation #2 . Did management violate the 2001-2006 National Agreement when

it only granted ten to fifteen days of continuous annual leave to

Valparaiso carriers instead of the negotiated amount allowed by the

Local Memorandum of Understanding? If so, what shall the

remedy be?

5. Stipulation #3 . Due to the inability of the postmaster to appear today the union

will accept Postmaster David Dews contentions as authentic and

require no testimony to complete authentication .

6. Stipulation #4 . Due to the relocation of this hearing the Postal Service agrees the

submitted PS Form 397 l's by the city letter carriers in this package

indicate that they were denied as well as desirous of those

selections without requiring testimony to do so .

Relevant Contract Provisions

2001 -2006 NATIONAL AGREEMENT

ARTICLE 10

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LEAVE

Section 3 . Choice of Vacation Period

A. It is agreed to establish a nationwide program for vacation planning for employeesin the regular work force with emphasis upon the choice vacation period(s) orvariations thereof

B. Care shall be exercised to assure that no employee is required to forfeit any part ofsuch employee's annual leave .

C. The parties agree that the duration of the choice vacation period(s) in all postalinstallations shall be determined pursuant to local implementation procedures .

D. Annual leave shall be granted as follows :1 . Employees who earn 13 days annual leave per year shall be granted up to ten

(10) days of continuous annual leave during the choice period. The numberof days of annual leave, not to exceed ten (10), shall be at the option of theemployee .

2. Employees who earn 20 or 26 days annual leave per year shall be granted upto fifteen (15) days of continuous annual leave during the choice period . Thenumber of days of annual leave, not to exceed fifteen (15), shall be at theoption of the employee .

3. The subject of whether an employee may at the employee's option requesttwo (2) selections during the choice period(s), in units of either 5 or 10working days, the total not to exceed the ten (10) or fifteen (15) days above,may be determined pursuant to local implementation procedures .

4. The remainder of the employee's annual leave may be granted at other timesduring the year, as requested by the employee .

E. The vacation period shall start on the first day of the employee's basic work week .Exceptions may be granted by agreement among the employee, the Unionrepresentative and the employer .

Section 4. Vacation Planning

The following general rules shall be observed in implementing the vacation planningprogram :

C. A procedure in each office for submission of applications for annual leave forperiodsother than the choice period may be established pursuant to the implementationprocedure above .

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ARTICLE 30LOCAL IMPLEMENTATION

A. Presently effective local memoranda of understanding not inconsistent or in conflictwith the 2001 National Agreement shall remain in effect during the term of theAgreement unless changed by mutual agreement pursuant to the local implementationprocedure set forth below or, as a result of an arbitration award or settlement arisingfrom either party's impasse of an item from the presently effective localmemorandum of understanding (LMOU)

B. There shall be a 30-day period of local implementation to commence October 1,2002 on the 22 specific items enumerated below, provided that no LMOU may beinconsistent with or vary the terms of the 2001 National Agreement .

4. Formulation of local leave program .

12 . The procedures for submission of applications for annual leave during otherthan the choice vacation period .

October 31, 2000 - November 20, 2001

LOCAL MEMORANDUM OF UNDERSTANDING

Item #4

Article 10 (*Impasse Item) (As is per settlement from Impasse)

A. There will be three selections made available to each person in the letter carrier craftby seniority. Each selection must be in continuous workdays for a full week.

B. The second selection will not be offered until all carriers have made their firstselection. The third selection will not be offered until all carriers have made theirsecond selection .

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Item #9

Article 10 (*Impasse Item) (As is per settlement from Impasse)

The choice vacation period will be the first full week in May through the last week inOctober. During the choice vacation period, fourteen percent (14%) of the carriers will beallowed off each week . The percentage will be rounded up after .50 .

There shall be two (2) carriers off during January, February and March . There shall be three(3) carriers off during April and there shall be two (2) carriers off during November .

Management will allow more carriers off during any month there is help available .

Item #12

Article 10, Section 4.A

A. One additional choice for annual leave will be granted, not to exceed two consecutiveweeks, providing there is a vacancy on the vacation calendar . This choice will besubmitted 14 days in advance and personally handed to the supervisor on the floorwho will punch in on the time clock for date and time received . Approval will bewithin 72 hours . The 3971's will be in duplicate with a copy going to the carrier .Seniority will prevail .

B . Submissions for leave for less than one (1) week must be submitted prior toWednesday of the preceding week . Approval or disapproval will be made by 3 :30P.M. on Wednesday preceding the week requested. If approval or disapproval is notreceived by ending time it will automatically be approved . Management must makeevery effort to approve the annual leave . Leave will be on a first come basis . 3971'swill be submitted in duplicate and punched in on the time clock to show date andtime submitted. One copy will go to the employee requesting the leave. Ifcircumstances prevent the employee form requesting annual leave so far in advancemanagement will consider the circumstances and if possible grant the annual leave .

NALC - USPS JOINT CONTRACT ADMINISTRATIONMANUAL (JCAM)

ARTICLE 10, SECTION 3, CHOICE OF VACATION

10.3.1)

D. Annual leave shall be granted as follows :

1 . Employees who earn 13 days annual leave per year shall be granted up to ten(10) days of continuous annual leave during the choice period . The number

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of days of annual leave, not to exceed ten (10), shall be at the option of theemployee .

2. Employees who earn 20 or 26 days annual leave per year shall be granted upto fifteen (15) days of continuous annual leave during the choice period . Thenumber of days of annual leave, not to exceed fifteen (15), shall be at theoption of the employee .

Number of continuous days off. Section 3 .D .1 . establishes that those employees who haveless than three (3) years of creditable service will be granted a maximum of ten (10)continuous days of annual leave . Section 3 .D.2. establishes that, those employees with morethan three (3) years of creditable service will be granted a maximum of fifteen (15)continuous days of annual leave for their choice vacation period selection(s) .

These sections do not foreclose the right of an employee to request additional annual leavecontinuous with the maximum number of .days applicable in either Section 3 .D.1 or 3.D.2above. Nor does it preclude an employee being granted additional annual leave during thechoice vacation period(s) if there are fewer than the maximum number or percentagenegotiated in a LMU pursuant to Article 30, Section B .9 (See Step 4 AC-C 10648, March17, 1977, -00865) .

10.3.D.3 3 The subject of whether an employee may at the employee's option requesttwo (2) selections during the choice period(s), in units of either 5 or 10working days, the total not to exceed the ten (10) or fifteen (15) days above,may be determined pursuant to local implementation procedures .

Requesting one or two vacation selections . The provisions of this section should be readin conjunction with any applicable LMU provisions established pursuant to Articles 30,Section B .7. This section allows the LMU to determine if the maximum number of days ofcontinuous annual leave for choice vacation selection will be requested as a single block ofeither ten (10) or fifteen (15) continuous days or as two (2) separate blocks of either five (5)or ten (10) continuous days each . For instance, an employee who has 15 days may request10 continuous days of annual leave in May and 5 continuous days in August .

SECTION 4. VACATION PLANNING

104.C C. A procedure in each office for submission ofapplications for annual leave for periodsother than the choice period may be established pursuant to the implementationprocedure above .

Applying for annual leave outside choice period . The provisions of this section should beread in conjunction with Article 10, Sections 3 .A and 3 .D.4 and any applicable LMUprovisions established pursuant to Articles 30, Section B . 12. The LMU may provide for twodifferent kinds of leave rules under Article 30 .B.12 :

A. Selections outside the choice period. Many LMUs have established a second round

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of bidding immediately following the first, enabling carriers to make advancevacation selections during times outside the choice vacation period (or during anyremaining time during the choice period) . (Any LMU provision that allowsemployees to ignore the choice period and make their initial selection of leave fromthe non-choice period is not permitted ; a national arbitration award by Mittenthal,HIC-NA-C-59, dated January 29, 1986 C-05670), held that such provisions are inconflict or inconsistent with the National Agreement) .

B. Other requests for annual leave . In addition, a LMU may specify rules governingother requests for annual leave, made as the need arises throughout the year ratherthan through the annual vacation bidding process . For example, a carrier might wintickets to a World Series game the following week and request leave to attend . Atypical LMU might specify that such leave requests must be made prior to the postingof the next week's schedule . It also might specify how long management has to replyto such requests, set forth procedures for handling daily leave, and specify priorities- by seniority or first-come, first served - for both advance and daily requests forannual leave .

Where LMU provisions do not cover rules concerning annual leave ofthis type, ELMSection 512 .61(a) provides, "For all regular employees, both full-time and part-time,vacation leave is granted when requested- to the extent practicable ."

Background and Facts

hi December of 2001, letter carriers assigned to the Valparaiso, Indiana Post Office began

the annual vacation bidding process for annual leave during the 2002 Calendar Year . The process

as developed through past practice under the LMOU provided for three selections : Selection 1 round

of bidding from the choice vacation period of from 5 to 15 working days per seniority earned and

in accordance with seniority or a similar selection from outside the choice period; Selection 2 round

ofbidding immediately following the first from the choice or outside the choice vacation periods per

seniority earned and in accordance with seniority ; Selection 3 round of bidding immediately

following the second round from the choice or outside the choice vacation periods per seniority

earned and in accordance with seniority . The foregoing was conditioned upon operational

considerations permitting such choices throughout as well as fewer employees being on annual leave

than the maximum number or percentage negotiated in the LMOU. The latter states, in pertinent

part :

Item #9

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Article 10(*Impasse Item) (As is per settlement from Impasse)

The choice vacation period will be the first full week in May through the last weekin October. During the choice vacation period, fourteen percent (14%) of the carrierswill be allowed off each week. The percentage will be rounded up after .50 .

There shall be two (2) carriers off during January, February and March .

There shall be three (3) carriers off during April and there shall be two (2) carriersoff during November.

Management will allow more carriers off during any month there is help available .

The foregoing process was followed through the first round .

After commencement ofthe second round, Supervisor of Customer Relations MaryHoffinan

halted the bidding on grounds that established procedure was inconsistent with the National

Agreement. Shortly thereafter, the Union filed a grievance on January 9, 2002 initiating the Dispute

Resolution Procedure . The class action grievance was processed through the procedure without

resolution and is now properly before the Arbitrator for final adjudication .

Positions of the Parties

The following positions were taken by the Union and the Employer, respectively, in a hearing

before the Arbitrator on Thursday, October 23, 2003 at the Peru, Indiana Post Office, located at 101

South Broadway, Peru, Indiana . At this hearing, all Parties were afforded a full opportunity to

present all relevant evidence and arguments . The record of evidence in this matter was declared

closed at hearing's end .

UNION

The Union contends that the annual vacation bidding procedure established over the years

is consistent both with the National Agreement and the LMOU - that letter carrier selections

consistent with seniority selected through the three bidding rounds within the choice period and

outside the choice period in rounds two and three are guaranteed . Should the Arbitrator find the

procedure in conflict or inconsistent with the National Agreement with respect to guaranteed amount

of time taken during the choice vacation period, any limits so imposed have been waived by the

Service's own admitted breach of the National Agreement by allowing letter carriers to make their

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initial vacation selection from the non-choice period .

For the foregoing reasons, the Union requested the Arbitrator to sustain the Class Action

Grievance, to issue a cease and desist order requiring the Service to adhere to the LMOU as

interpreted through past practice, and to order the Service to compensate each Valparaiso Letter

Carrier on the seniority roster as of January 2002 in the amount of $250 to make them whole for the

Service's arbitrary violation of the LMOU . In support of its positions, the Union submitted several

arbitration awards. These were: Case No . : S4N-3R-D 35445 (Arbitrator Irvin Sobel, March 7,

1987); Case No .: W4N-5R-C 32984 (Arbitrator Carl B . A. Lange III, April 18,1989) ; and Case No .

S7N-3V-C 25869 (Arbitrator F . Jay Taylor, January 11, 1992) .

EMPLOYER

The Postal Service admits that it made a mistake in permitting letter carriers at the Valparaiso

facility to select time off during the non-choice vacation period before selecting time off during the

choice vacation period during the annual vacation bidding process in December of 2001 . Both the

NALC-USPS Joint Contract Administration Manual (JCAM) and Arbitrator Mittenthal find such

a practice and LMOU provisions sanctioning such a practice to be in conflict or inconsistent with

the National Agreement .

As regards the amount of annual leave guaranteed letter carriers, the National Agreement

provides a maximum of from 10 to 15 days of continuous leave in accordance with earned seniority

be taken during the choice vacation period or that such time be taken as two (2) separate blocks of

either 5 or 10 continuous days each during the choice vacation period . In no case should the total

leave days guaranteed during the choice period exceed the maximum amount of 10 to15 days

specified by Section 10.3 .13 of the National Agreement . Should the Arbitrator conclude that the

LMOU through practice or custom provides for a total in excess of the foregoing amounts, he is

reminded that such a practice is null and void by virtue of the Union's own violation of the LMOU

regarding the selection of a non-choice vacation period during the first round of the annual vacation

bidding process .

For these reasons, the Postal Service requested the Arbitrator to deny the grievance and the

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remedy requested and to rule that there were no violations of the National Agreement and/or the

Local Memorandum of Understanding (LMOU). In support of its position and arguments, the

Service cited several national and regional arbitration awards . These were: Case No . : J94C-1J-I

96051055 UCH04 (Arbitrator George T . Roumell, Jr., March 1, 1997); Case No . J94C-1J-C

98074875 (Arbitrator Steven M . Bierig, September 6, 2000) ; and Case Nos. : HIC-NA-C 59/61

(Arbitrator Richard Mittenthal, January 26, 1986) .

Discussion

It is incumbent upon the Union to prove the truth of the matter that it has affirmed, namely,

that the Postal Service violated Articles 10 and 30 of the National Agreement and Items 4, 9, and 12

of the Local Memorandum of Understanding (LMOU) when it failed to proceed beyond the first

round in permitting letter carriers to select time off during choice and non-choice vacation periods

under the LMOU . The quantum of proof customarily required in contract cases such as this for the

NALC to meet its burden of proof is "a simple preponderance of the evidence ." This standard will

be used to resolve the instant contract dispute .

As regards the parties' custom and past practice of permitting letter carriers to select annual

leave during the non-choice vacation period during the first round of the annual vacation bidding

process - before making selections during the choice vacation period, it is clearly in conflict or

inconsistent with the JCAM and the Mittenthal Award interpreting the National Agreement .

Specifically, the former holds on page 10-8 :

Any LMU provision that allows employees to ignore the choice period and maketheir initial selection of leave from the non-choice period and make their initialselection of leave from the non-choice period is not permitted ; a national arbitrationaward by Mittenthal, H1C-NA-C 59, dated January 29, 1986 C-05670), held thatsuch provisions are in conflict or inconsistent with the National Agreement .

On the other hand, as argued by the Postal Service, the foregoing breach of the National

Agreement does not void all LMOU provisions as applied by or interpreted through established past

practice . Arbitrator Mittenthal appears to concur with this latter determination in the above-cited

award, writing:

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It maybe that a particular LMU clause will, due to the poor judgment of thenegotiators, permit too many employees to be on leave at one time or permitemployees to take leave on too short a notice . It maybe that these arrangements willcause inefficiencies . But such matters can presumably be corrected through localnegotiations or, ifnecessary , through arbitration of local impasses.* It cannot be said,on the present state of the record, that all (or most) LMU clauses on leave duringnon-choice periods (or incidental leave ) must necessarily cause inefficiency . The factthat some clauses have such an effect is no basis for invalidating all clauses .(Emphasis Added)

There are several decisional arbitration rules taken from general contract law that have been

relied upon by practitioners to resolve contract interpretation disputes : (1) the jurisdiction

construction principle ; (2) the residual rights construction principle ; and (3) the parol rules of

evidence construction principle . The last is pertinent to the instant dispute . The parol rules of

evidence requires the arbitrator to view the contract as a whole and to, ifpossible, ascertain from that

document the intent of the contracting parties . In other words, if the contract governs the disputed

issue (even in general terms ) and the language is not clear in meaning, the contract must then be

viewed as a whole, reading each provision to ascertain the intent of the unclear language before

evidence outside the four comers of the contract may be considered . The foregoing applies not only

to the contract per se but also to any jointly negotiated or approved clarifying

documentation/addenda, such as, in the instant case, the JCAM and the LMOU , that are part and

parcel of the National Agreement.

In terms of the instant dispute , the foregoing means reading Articles 10.3 .13 and 10.4.C

together with the pertinent explanatory material contained on Pages 10 -6 through 10-9 in the JCAM .

The latter, in addressing the caps of from 10 to 15 days of continuous annual leave put in place by

Article 10 .3 . D of the National Agreement for the choice vacation period, goes on to explain :

These sections do not foreclose the right of an employee to request additional annualleave continuous with the maximum number of days applicable in either Section3 .D.1 or 3.13.2 above. Nor does it preclude an employee being granted additionalannual leave during the choice vacation period (s) if there are fewer employees onannual leave than the maximum number or percentage negotiated in a LMU pursuantto Article 30, Section B .9 (See Step 4 AC-C 10648, March 17, 1977, M-00865) .

Clearly, the foregoing contemplates and provides for additional annual leave during the choice

vacation period - in addition to the 10 to 15 days provided by Article 10 .3.D.1 and 10.3.D.2

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provided the additional leave is continuous with (as opposed to consistent with ) the maximum

number of days of Article 10 .3.D.1 and 10.3.D.2 and provided that the conditions specified by the

JCAM, namely, "fewer employees on annual leave than the maximum number or percentage

negotiated in a LMU pursuant to Article 30 .B .9" are met . Item #9 of the instant LMOU establishes,

in pertinent part, that :

The choice vacation period will be the first full week in May through the last weekin October. During the choice vacation period, fourteen percent (14%) of the carrierswill be allowed off each week . The percentage will be rounded up after .50 .

There shall be two (2) carriers off during January, February and March . There shallbe three (3) carriers off during April and there shall be two (2) carriers off duringNovember .

Management will allow more carriers off during any month there is help available .

Article 10 .4.C as interpreted by the JCAM also contemplates and provides for

additional time off during both choice and outside the choice vacation periods as well as

providing for multiple rounds of selection in the annual vacation bidding process . Page 10-8

of the JCAM reads, in pertinent part :

Applying for annual leave outside choice period . The provisions of this sectionshould be read in conjunction with Article 10, Sections 3 .A and 3 .D.4 and anyapplicable LMU provisions established pursuant to Articles 30, Section B.12 . TheLMU may provide for two different kinds of leave rules under Article 30 .B.12 :

(a) Selections outside the choice period . Many LMUs have established asecond round of bidding immediately following the first, enabling carriers to makeadvance vacation selections during times outside the choice vacation period (orduring any remaining time during the choice period) . (Emphasis added)

These additional leave days are mandatory in the same sense that advance vacation selections

in the choice vacation period during the first round of the annual vacation bidding process are

mandatory unless contractual limitations placed on leave are violated (e .g., Item #9 of the LMOU

limiting leave to 14% of the carrier workforce) or unless operating requirements dictate otherwise .

Arbitrator Mittenthal, himself, contemplated such secondary or even tertiary selections being

mandatory in the sense described above, writing in Case Nos . HiC-NA-C 59/61 that :

It is difficult to believe that [the formulations of local leave programs under Article30.B .4] could not likewise make it mandatory on Management to grant leave at acertain time during the non-choice period . That should be especially true where the

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LMU clause permits a lesser percentage of employees to be off during the non-choiceperiod .

The Postal Service cited two arbitration awards in addition to the Mittenthal Award in Case

Nos. : HIC-NA-C 59/61 . The first, Case No . : J94C-IJI 96051055 UCH 04 (Arbitrator George T .

Roumell, March 1, 1987), is simply not persuasive underthe circumstances presented this Arbitrator ;

I respectfully disagree with Arbitrator Roumell's conclusions . The second, Case No . : J94C-1J-C

98074875 (Arbitrator Steven M . Bierig, September 6, 2000), is an expedited case and, as such, is not

compelling as precedent .

It is the Union's burden to establish the harm done the letter carriers by the Service's

violation ofthe LMU . This it failed to do ; mere assertion of $250/week/per carrier does not establish

the truth of the matter affirmed. Since the Union failed in this regard, any remedy must be of a de-

minimis nature. Simultaneously, however, it must be such as to "get the Service's attention" and

discourage similar future violations . Hence, the Arbitrator orders a $50 per carrier payment - an

amount surely to increase should future violations occur .

Award

After a careful review and examination of the Parties' stipulations, the evidence, the cited

arbitration awards, the facts, and the circumstances of this case, the following award is made :

1 . The Class Action Grievance is found to be meritorious . The Employer's motion to

dismiss the Grievance is denied:

GRIEVANCE SUSTAINED/ DE-MINIMIS RELIEF ORDERED

2. The Postal Service is hereby ordered to return to the annual vacation bidding process

in place by LMOU and practice prior to January, 2002 as herein described

3 . The Postal Service is also ordered to make a de minimis monetary award of $50 to

each carrier on the seniority list as of January, 2002 .

4. The Parties are hereby directed to compensate the Arbitrator for his fee and expenses

in accordance with the applicable provision(s) of the National Agreement .

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Dated this 10th day of November, 2003 at Yorktown , Indiana.

Arbitrator

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