Can non-odl employees work OT before the ODL gets 12 hours?

The following is a copy of a letter I sent to a member. It is in response to the question of whether it is a grievance when non-odl employees are allowed/mandated overtime alongside odl employees, before the odl employees have been offered 12 hours. I thought it was worthy of posting on here for everyone to read, so I want to thank the employee for giving me permission to post it.

Click for Relevant Contract Language: Article 8 NA and JCIM

Click to download the: Mittenthal Arbitration

I have attached the relevant contract language from the National Agreement, as well as the relevant language from the Joint Contract Interpretation Manual (JCIM), and a copy of an arbitration settlement on the issue, arbitrated by Arbitrator Mittenthal, dated January 14,1991.  As you may or may not know, National Arbitrations such as this one are agreed by both parties to be a binding resolution to the issue being arbitrated. As such, this is the interpretation of the contract language in question, that both sides must look to when there is a dispute. The APWU lost this case, with the Arbitrator siding with management, that there are occasions, other than time critical dispatches, etc where management MAY utilize both non-odl & ODL employees simultaneously on overtime, but they have to have a legitimate operational reason.

In our particular case,  whether management can utilize people that are not on the ODL, I will try to explain. When there are people that have not yet worked 12 hours that ARE on the ODL, they can use the people that are not on the ODL alongside the people that ARE on the ODL when the work being performed is time sensitive and could not be done, in time, utilizing solely the people that are on the ODL. This means that if they need to use the non-odl people AND the ODL people, to get the mail out in time for Dispatch at, say, 1 A.M., then it would be ok for management to require the ODL people & the non-odl to work overtime from 10PM til 12PM. Makes sense, right? Keeping the ODL people until 2 A.M. doesn’t help the 1 A.M. dispatch. Therefore, there is no violation of our contract. However, if management keeps the same people at the same times for the same reason, but dispatch is not until 6.A.M., then this IS a violation, because clearly keeping the ODL people until 2. A.M. would have left management with plenty of time to meet dispatch. Now we just have to meet our burden of proof.

Meeting the burden of proof is the key. When there is a contractual violation, the burden of proof is on the Union to demonstrate that what management did or did not do was indeed a violation. Only in the case of discipline is the burden on management to prove the discipline was for just cause. So the Union has to make the case that management violated the contract, and we have to be able to provide the evidence to convince a neutral party (Ultimately an Arbitrator) that management did commit a violation.

Many times there is a violation, but we don’t have the evidence to prove our case. One example is when management uses the non-odl people alongside the ODL people. We get a couple of statements from a couple of the ODL people and a couple statements from the non-odl people. They all say the same thing. Management used the ODL people and didn’t keep the ODL people 12 hours. As the Mittenthal Arbitration attached points out, there are situations when this is not a violation. So if that is all that is in the statements, and the burden of proof is on us, then management can merely submit at the step-2 meeting that time was of the essence. Management could claim whatever they want, and if we don’t have the evidence to prove otherwise, then it is basically a he said/she said scenario. With the burden of proof on us, and not management, then management wins. Appealing this case higher than step 2 would be a waste of time, Union resources, and would make it appear that we are bargaining in bad faith. Both parties are obligated to bargain in good faith. Failure to do so adds doubt and skepticism into all future grievances, increasing the burden on us in subsequent cases.

So in EVERY case we need to prepare to face management’s position. Here is what needs to happen, in the case we are discussing. As soon as the ODL or non-odl person finds out the above violation is occurring, they need to ask to see a steward, and ASAP, and let the supervisor know why they need them. The supervisor has the right to know, and the employee should tell them that the reason is because they believe that management should be utilizing 12 hour ODL people for 12 hours before keeping non-odl people 10 hours. Whatever the supervisor says, the employee should then write down. It doesn’t have to be immediately, but as soon as possible, and definitely in a statement to provide to a steward. Management normally has to provide a steward within 2 hours, and if they really are trying to meet dispatch, they definitely will make you wait. In the best case scenario, the supervisor would have realized their mistake, and let the non-odl people go home and kept the 12 hr. ODL people for the full 12 hours. That, we know, rarely happens. However, by approaching the supervisor and letting them know, it does give them a chance to fix their mistake. That is why addressing your supervisor is the first step in the grievance procedure, stated clearly in article 15 of the contract. Hopefully there is a steward on duty, or else you may have to wait, sometimes until the next day. This is a problem we face by not having enough people willing to step up and be stewards or alternate stewards. That problem is US, and there are times we lose cases, or never even get them grieved, simply because we don’t have enough members willing to step up and become a steward or alternate. This is as frustrating to the stewards and officers of our local, as it is for the members that feel they are not being represented as well as they should be.

Once management has provided a steward for you, then the supervisor should allow you to go off the workroom floor to discuss the issue. The grievant should let the steward know the issue, and then the grievant should go back to work, and the steward should go see the supervisor to either ask them the reasons for the contract violation, or else set up an appointment when they can discuss it. The steward needs to do this (as soon as possible) so that we have more evidence showing the reason management used for keeping non-odl employees late. It may also be that the supervisor’s reason is a valid one, in which case the steward can let the grievant know. Either way, the steward needs to find out what management’s position is on the issue; whether there was a dispatch time or some other time-necessary reason for the violation. Whatever the steward finds out, they should then be able to go back and discuss with the grievant. At this point, whether the steward recommends it or not, if the employee wants to grieve it, the grievant needs to tell their supervisor that they need time with the steward to write a statement regarding the grievance. The supervisor then has to give the person time, with a steward, to go off the floor and write their statement. As many people as were affected need to do the same, and write complete, factual statements, with as much detail as possible. We are afforded time on the clock to do this, so there is no reason for this to be an issue. Unfortunately, in many cases our own members do not want to be bothered. Employees need to be encouraged to write these statements because every statement helps us to prove our case. Additionally, if management has to lose 10 people for 15 minutes each, every time they violate our contract, then that helps to persuade management to stop violating our contract.

Once the statements are written, then the steward can gather other evidence such as Overtime Desired Lists, employee clock rings, Dispatch times, notes on what the supervisor claimed at the time, copy of the LMOU, copies of language from the Contract and JCIM, as well as any supporting arbitrations or step 4 settlements, etc.. This all will help us to prove that whatever management did was indeed a violation. We should be able to end up with enough evidence to prove that management did in fact violate the terms and conditions of the National Agreement, JCIM or our Local Memorandum Of Understanding (LMOU). With the right evidence, it’s possible that the supervisor will settle at step 1 and the case will be closed. Sometimes the supervisor will settle without much of the evidence at all, simply because they know the violation occurred and it saves themselves time, and the Postal Service money, because the employees and the stewards won’t need as much time off the work room floor. Other times, supervisors will not settle, and will just hope the employees and stewards will not take the time and make the effort to properly produce the evidence needed to prove their case.         This is why COMPLETE statements are so important. Who did what? When did it happen? Where did it happen? Why is it a violation? What remedy do you seek? This all, in detail, needs to be in every statement.

I want to mention a couple things. When an employee requests a steward, it is management’s responsibility to provide the steward. It is not up to the employee to go find one. If management says you can go find one, don’t let them get away with that. Let them know that you want to see a steward and that it is their obligation to get one and provide one. Keep track of when you ask. If you haven’t received one in 2 hours, ask again. It may be necessary to ask several times. In any case, document it. If a supervisor fails to provide a steward timely, that itself is a violation and needs to be the subject of another grievance. Once again it is on the employee to request the time with the steward and write the complete statement regarding the failure of management to provide a steward timely. If the steward is not provided timely, and/or the grievant is not provided time on the clock to write a statement, then the grievant needs to write the statement at home, or otherwise “off the clock”, with the reason they are writing the statement off the clock included in the statement. Part of the remedy they are requesting should be to pay them at the overtime rate for the amount of time they took to write the statement. We can’t let management get away with this stuff. We need to force management to recognize and adhere to our Contract, JCIM and LMOU.

I hope this answered your question. In summary, sometimes it is a violation and sometimes it is not. I am betting that more often than not, they ARE violating our contract. Unless you know for certain that what they are doing IS allowed, I would suggest that you go through the steps mentioned above and initiate a grievance.

In solidarity,

Robert Stahl

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