In the Matter of the Arbitration Between UNITED STATES POSTAL SERVICE

Transcription

1 NATIONAL ARBITRATION CASE NO. E95R-4E-C In the Matter of the Arbitration Between UNITED STATES POSTAL SERVICE - and - NATIONAL RURAL LETTER CARRIER'S ASSOCIATION Subject:- Mail Count Coeur D Alene P O-603 Chapter 5, Dana Edward Eischen, National Arbitrator Appearances For the NRLCA: Peer & Gan, LLP by Michael Gan, Esq., of Counsel For the U.S.P.S.: Jonathon I. Saperstein, Esq. For the NRLCA Gus Baffa, President Randy Anderson, Dir. Labor Relations Also Present For the U.S.P.S. Frank Kreiner, USPS (ret.) Cathy Perron, Labor Relations Rep. Dan Stanaway, Postmaster Robert West, Operations Specialist

2 2 PROCEEDINGS Article 15, Section 5 of the National Agreement between the United States Postal Service ( USPS or Employer ) and the National Rural Letter Carrier s Association ( NRLCA Union or Association ) provides for two-tier grievance arbitration: Article 15.5.C National Arbitration of certified cases involving national interpretations and/or other cases which the parties agree have substantial significance ; and, Article 15.5.D area arbitration of removal cases and contract cases not involving national issues. Step 4 of the grievance procedure is reserved for National-level disputes over the interpretation of the National Agreement and, to the extent specified in Article 19, provisions of published handbooks and manuals. This National Arbitration case presents an unresolved dispute over how a particular article of mail should be counted and recorded on PO Form 4239, i.e., as a parcel or as a flat, as those terms are defined in the Rural Carrier Duties and Responsibilities Handbook ( PO-603"). Specifically, the dispute is over the proper credit to be accorded a mail piece consisting of a flat-sized magazine paired with a computer disk/cd packaged in a rigid plastic case exceeding 5 in height; both of which items were enclosed in the same flexible plastic wrapper or envelope. The Postal Service determined that this particular mail piece, taken as a whole, should be counted as a flat in accordance with Part b of the PO-603. (the time allowance for flats was then 7.5 seconds per piece). The Association maintains that this mail piece should have been credited as a parcel, because one of the dimensions of the enclosed computer disk /CD case exceeded the dimensions for rigid parcel, as set forth in Part c(1)(a) of the PO-603 (the time allowance for parcels was then 30 seconds per piece).

3 3 After the matter remained unresolved through all stages of contractual grievance machinery culminating in a Step 4 denial, it was certified for resolution in this National Arbitration. A hearing was held at Washington, D.C., on July 9, 2002, at which both Parties were represented by Counsel and afforded full opportunity to present documentary evidence, testimony subject to crossexamination and oral argument. A transcribed certified stenographic record was made and the proceedings thereafter were closed with the filing and exchange of posthearing briefs in late September The Parties graciously granted an extension of the contractual time limits for rendition of the Opinion and Award. NATIONAL INTERPRETIVE ISSUES It is critically important for an arbitrator to be specific, objective and precise in deciding only the issue which is presented for determination in a particular case. At the arbitration hearing in this matter, the Parties attempted to develop a joint submission of the merits issue for determination, but were unable to arrive at mutually acceptable wording. Therefore, each Party submitted its own version of the national interpretive issue regarding violation/compliance with PO 603 upon which it seeks a decision in this case. The Association articulated the issue as follows: Did the Postal Service violate Chapter 5, Section c. of the PO-603 i.e., the Rural Carrier Duties and Responsibilities Handbook, when it entered and credited in Column c of failed to give parcel credit to rigid articles exceeding one of the dimensions listed in c.(1)(a)-(c)? For its part, the Postal Service proposed the following formulation of the issue: Did management violate provisions of the Rural Carrier Handbook, i.e., PO-603, entitled, Rural Carrier Duties and Responsibilities, by recording flats and magazines that contain a rigid enclosure exceeding five inches in height as a flat rather than a parcel?

4 There was not a significant difference in these proposed partisan statements of the issue, but each is somewhat slanted by nuances of artful pleading by adept advocates. Unfortunately, the record before me does not include the specific piece(s) of mail which actually spawned the original grievance in Couer D Alene ; so each of the Parties resorted to hearsay testimony describing the article(s) and each side submitted exemplars. Respective Counsel did concur, however, with my suggestion that the specific the issue presented for determination ultimately is ascertained by reference to the grievance papers and the chain of communications leading up to the certification to National Arbitration. It is plain that both the original grievance and the Step 4 discussions involved whether, during the 1998 Mail Count, Postal Service managers correctly entered on Form 4239 credit for an article consisting of a CD or computer disk in a case of plastic or other hard material exceeding 5" in height, together with a flat-sized magazine; which were packaged together as a single mail piece in a flexible plastic periodical wrapper or envelope. Based on the foregoing, my analysis of the record of grievance handling shows that National Arbitration Case No. E95R-4E-C presents the following issues for determination: 1) Did Postal Service management violate Chapter 5, Section of the PO-603 i.e., the Rural Carrier Duties and Responsibilities Handbook, by entering in Column B--Papers, Magazines, Catalogs, Flats, Other Size Mail, rather than in Column C Parcels, on Form 4239, a mail piece consisting of a flexible, labeled periodical wrapper or envelope containing both a non-rigid magazine approximately 10 inches high and 8 inches wide and a rigid CD or computer disc case exceeding 5 in height,? 2) If so, what shall be the remedy? 4

5 Section 1. General Policy 5 NATIONAL AGREEMENT PROVISIONS * * * * * * ARTICLE 15 GRIEVANCE AND ARBITRATION PROCEDURE Grievances which are filed pursuant to this Article are to be processed and adjudicated based on the principle of resolving such grievances at the lowest possible level in an expeditious manner, insuring that all facts and issues are identified and considered by both parties. In the event that a grievance is processed beyond Step 1, both parties are responsible to insure all facts, issues and documentation are provided to the appropriate union and management officials at the next higher level of the grievance procedure. The parties further agree that at any step in the grievance procedure, the Union representative shall have full authority to settle or withdraw the grievance in whole or in part. The Employer representative, likewise, shall have full authority to grant, settle or deny the grievance in whole or in part. Section 2. Definition A grievance is defined as a dispute, difference, disagreement or complaint between the parties related to wages, hours, and conditions of employment. A grievance shall include, but is not limited to, the complaint of an employee or of the Union which involves the interpretation, application of, or compliance with the provisions of this Agreement. Section 4. Grievance Procedure-General * * * A. Observance of Principles and Procedures The parties expect that good faith observance, by their respective representatives, of the principles and procedures set forth above will result in settlement or withdrawal of substantially all grievances initiated hereunder at the lowest possible Step and recognize their obligation to achieve that end. B. Failure to Meet Time Limits The failure of the employee or the Union at Step 1, or the Union thereafter, to meet the prescribed time limits of the Steps of this procedure, including arbitration, shall be considered as a waiver of the grievance. C. Failure to Schedule Meetings Failure by the Employer to schedule a meeting or render a decision in any of the Steps of this procedure within the time herein provided (including mutually agreed to extension periods) shall be deemed to move the grievance to the next Step of the grievance-arbitration procedure. D. National Level Grievance It is agreed that in the event of a dispute between the Union and the Employer as to the interpretation of this Agreement, such dispute may be initiated as a grievance at the Step 4 level by the President of the Union. Such a grievance shall be initiated in writing and must specify in detail the facts giving rise to the dispute, the precise interpretive issues to be decided and the contention of the Union. Thereafter the parties shall meet at Step 4 within thirty (30) days in an effort to define the precise issues involved, develop all necessary facts, and reach agreement. Should they fail to agree, then, within fifteen (15) days of such meeting, each party shall provide the other with a statement in writing of its understanding of the issues involved, and the facts giving rise to such issues. In the event the parties have failed to reach agreement within sixty (60) days of the initiation of the grievance at Step 4, the Union then may appeal it to arbitration, within thirty (30) days thereafter.

6 6 Section 5. Arbitration * * * A. General A request for arbitration must be submitted within the time limit for appeal as specified for the appropriate Step. The National President of the Union must give written authorization of approval to the Employer at the national level before the request for arbitration is submitted. Grievances referred to arbitration will be placed on a pending arbitration list. Except for discharge cases, the Union will have sixty (60) days from the date of such referral to certify the case to be scheduled for arbitration at the earliest possible date. Cases which are not certified for arbitration within the sixty (60) day period shall be considered waived and removed from the pending arbitration list. Discharge cases referred to arbitration shall be placed on a separate pending arbitration list. The Union will have fifteen (15) days from the date of such referral to certify the case to be scheduled for arbitration at the earliest possible date. Cases which are not certified for arbitration within the fifteen (15) day period shall be considered waived and removed from the pending arbitration list. If there are other certified disciplinary cases related to the employee's removal grievance, these cases shall be scheduled for hearing along with the removal cases. The case with the lowest docket number pending before a panel will be scheduled to be heard first. However, the parties may mutually agree to assign such cases for hearing out of numerical sequence in order to fill a vacated hearing date, or to lessen the amount of the arbitrator's travel time and expense or for other valid reasons. Arbitration hearings shall be held during working hours. Employee witnesses shall be on Employer time when appearing at the hearing provided the time spent as a witness is part of the employee's regular working hours. Any dispute as to arbitrability may be submitted and determined by the arbitrator. The arbitrator's determination shall be final and binding. The arbitrator shall render his award within thirty (30) days of the close of the hearing, or if briefs are submitted, within thirty (30) days of the receipt of such briefs on cases which do not involve interpretation of the Agreement, or are not of a technical or policy making nature. On all other cases, the award shall be rendered within thirty (30) days if possible. All decisions of the arbitrator shall be limited to the terms and provisions of this Agreement and in no event may the terms and provisions of this Agreement be altered, amended or modified by the arbitrator. Unless otherwise provided in this Article, all costs, fees and expenses charged by an arbitrator will be borne by the party whose position is not sustained by the arbitrator. In those cases of compromise where neither party's position is clearly sustained, the arbitrator shall be responsible for assessing costs on an equitable basis. B. Selection of Panels National and Area Arbitration Panels are established as set forth below: The members of these panels will be selected in accordance with the procedure set forth below and will serve for the term of this Agreement and shall continue to serve for six (6) months thereafter unless the parties otherwise mutually agree. To assure the expeditious processing of grievances, the parties by agreement may increase the size of these panels at any time. Should vacancies occur, or additional members be required on the National or Area panels, such vacancies shall be filled by mutual agreement. In the event the parties cannot agree on individuals to serve on these panels, or to fill any vacancies which may exist, a list of five (5) arbitrators will be supplied by the American Arbitration Association for each selection to be made. The parties shall then proceed by alternately striking names from the list until only one individual remains. Such individual shall be selected to remain on the panel.

7 7 C. National Arbitration Effective August 3, 1996, a National Panel of not more than three (3) arbitrators will be established to hear certified cases involving national interpretations or other cases which the parties agree have substantial significance. Arbitrators on the National Panel will be assigned to hear cases on a rotating basis. Member(s) of the Area Panel may by mutual agreement be member(s) of the National Panel. Prior to the scheduled hearing each party to the dispute may separately submit to the arbitrator who has been assigned the case, and to the other party to the dispute, a statement setting forth the following: a. the facts relevant to the grievance; b. the issue in the case; c. the position(s) or contention(s) of the party submitting the statement. The parties may by mutual agreement submit a joint statement to the arbitrator. A stenographic record will be taken if requested by either party to the dispute. In such case, the cost of such record shall be borne by the requesting party. The other party, upon request, will be furnished a copy of the record, in which case the cost of such record shall be borne equally by both parties to the dispute. D. Area Arbitration A geographically balanced Area Panel of arbitrators is established to hear removal cases and contract cases not involving national issues. Normally, a stenographic record shall not be taken at these hearings, nor post hearing briefs filed. However, either party may make exception to this policy. The case with the lowest docket number pending before a panel will be scheduled to be heard first. However, the parties may mutually agree to assign such cases for hearing out of numerical sequence in order to fill a vacated hearing date, or to lessen the amount of the arbitrator's travel time and expense or for other valid reasons. * * * * * ARTICLE 19 HANDBOOKS AND MANUALS Section 1. Statement of Principle Those parts of all handbooks, manuals, and published regulations of the Postal Service, that directly relate to wages, hours or working conditions, as they apply to employees covered by this Agreement, shall contain nothing that conflicts with this Agreement, and shall be continued in effect except that the Employer shall have the right to make changes that are not inconsistent with this Agreement and that are fair, reasonable, and equitable. This includes, but is not limited to, the Employee and Labor Relations Manual (ELM) and Handbook F-21, Time and Attendance. Section 2. Initial Notice of Proposed Changes Notice of such proposed changes that directly relate to wages, hours, or working conditions will be furnished to the Union at the national level at least thirty (30) days prior to issuance. Such notice shall identify the proposed changes in the appropriate handbook or manual, as they apply to the Rural Carrier Craft. After receipt of the notice, the Union may request a meeting concerning the proposed changes. Such request must be made within fifteen (15) days of receipt of the notice; and the meeting must be scheduled and held within thirty (30) days after receipt of the notice unless mutually agreed otherwise. Section 3. Final Notice and Arbitration Following the meeting and prior to publication, the Union will be given a final written notification of the changes which shall include any modifications to the initial proposed changes. Upon receipt of this final notice, if the Union believes the changes violate the National Agreement (including this Article), it may then submit the issue to arbitration in accordance with the arbitration procedure within thirty (30) days after

8 receipt of the final notice. Absent a request for a meeting in accordance with the time limit set forth above, a request for arbitration must be submitted within forty-five (45) days of receipt of the initial notice of proposed changes. Copies of those parts of all new handbooks, manuals and regulations that directly relate to wages, hours and working conditions, as they apply to employees covered by this Agreement, shall be furnished the Union upon issuance. * * * * * * RURAL CARRIER DUTIES AND RESPONSIBILITIES HANDBOOK PROVISIONS (Emphasis in original) Completion. During the entire mail count period, complete Form 4239 daily for each route. Daily, transfer the totals from Form 4239 to Form Use the following guidelines to complete Form 4239: a. Column A--Letter-Size Mail (1) Enter in this column all letter-size mail including ordinary letters, cards, newsletter-type mail, and circulars 5 inches or less in width that can be cased in the separations of the carrier cases. Small magazines and small catalogs 5 inches or less in width and 3/8 inch or less in thickness are included in this column. Include detached address labels (specifically addressed) for sample merchandise, magazines, and catalogs in the letter count. Note: The maximum thickness of 3/8 inch applies only to small magazines and small catalogs. Letter-size mail is whatever fits in the width of the case separation being used regardless of thickness. All detached address cards (WITH A SPECIFIC ADDRESS) for sample merchandise, shared mail, magazines, and catalogs are. included in the letter count. (2) Do not include newspapers, boxholders, flats, and rolls even though they may be cased with letter mail. Count each direct or segmented bundle (see 225.4) distributed and tied out at mail distribution cases as one parcel, and enter in column C. Do not count direct or segmented bundles tied out at the carrier case (see 225.5) as parcels. Do not include registered, certified, COD, numbered insured, Express Mail, and other accountable mail in this column. For special delivery articles, see column F. b. Column B--Papers, Magazines, Catalogs, Flats, Other Size Mail. Enter in this column newspapers, flats, magazines, catalogs, rolls, and other nonletter size mail that can be cased for delivery using carrier casing equipment. This includes catalogs cased with other mail or cased separately. This does not include those items specifically referenced in column C-Parcels. Exceptions: Count simplified address articles, including mail with detached labels, as boxholder mail and enter in column D. Count each direct or segmented bundle distributed and tied out at mail distribution cases (see 225.4) as one parcel, and enter in column C. Do not count direct or segmented bundles tied out at the carrier case. (See 225.5) as parcels. Do not count in this column registered, certified, COD, numbered insurance mail, Express Mail, and other accountable mail. For special delivery articles see column F. c. Column C-Parcels. (1) A parcel is any rigid article that exceeds any one of the following dimensions; (a) 5 inches in height, (b) 18 inches in length, (c) 1-9/16 inches in width. Example: A rigid article that measures 4 x 15 x 1-3/4 inches is recorded as a parcel because the 1-3/4-inch thickness exceeds the 1-9/16-inch criteria. However, a rigid article that measured 5 x 18 x 1-9/16 inches is recorded as a flat because none of the dimensions exceed the stated criteria. (This includes articles properly prepared and endorsed Do Not Fold or Bend in accordance with Domestic Mail Manual (DMM) c.) 8

9 9 (2) In addition, any nonrigid article that does not fit in the letter or flat separations (where flat separations are used) with other mail is considered a parcel. (This includes articles that have not been prepared in accordance with DMM121.42e, even though the mailer has endorsed them DO NOT FOLD OR BEND. These nonrigid articles should be carried credited as parcels, provided they do not fit in the letter or flat separation (where flat separations are used) with other mail without damage to the article.) (3) The carrier has the option of handling order-size articles either with flat mail or separately, regardless of how it is credited. (4) Parcels with detached labels do not belong in this column. They are counted as box holders in column D. Only specifically addressed samples too large to be cased are included in the parcel count. (5) Each direct or segmented bundle distributed and tied out at the mail distribution cases (see 225.4) is counted as a parcel. Direct or segmented bundles tied out at the carrier's case (see 225.5) are not counted as a parcel. (6) Registered, certified, COD, numbered insured, Express Mail, and accountable mail are not counted in this column. (See column F for special delivery articles.) * * * * * * February 2, 1998, pre-national Arbitration Settlement in Case No. F91R-4F-C , Sun City, CA (hereinafter, Sun City ). The issue in this grievance is whether Management violated the Methods Handbook PO-603, Rural Carrier Duties & Responsibilities during mail count, when rigid articles of mail less than 6 1/8 inches in width, processed on automated equipment as Delivery Point Sequence (DPS) mail are credited as DPS mail and not parcels. During our discussion, we mutually agreed that the following will constitute full and complete settlement of this case: During a rural route mail count, a rigid article received in DPS will be counted and recorded under Column C. as a parcel if the rigid article exceeds any one of the dimensions in Part c(1) of the PO-603. Rigid articles received in DPS mail that do not exceed any of the dimensions in Part c(1) of the PO-603 are counted and recorded under Column L. as DPS letters. BACKGROUND Under the evaluated pay system established by USPS and NRLCA, each rural carrier is paid a unique salary, determined by an annual evaluation of his/her route, premised on a National Mail Count conducted during representative two or four week periods established by the National Agreement. During the annual National Mail Count conducted by Postal Service managers and

10 10 monitored by the Association, data are collected about each rural route: the mail volume handled, the daily miles traveled, the number and type of boxes served, and the fixed or variable time allowances associated with functions that rural carriers perform in the post office and/or on the route. Each mail piece handled by a rural carrier is recorded by an entry under the appropriate column on Form 4239 daily and transposed to Form 4241, in accordance with the guidelines set forth in PO-603, Section 512, supra. During the annual mail count period, Postal Service management is responsible for daily counting and recording on PS Form 4239 the number and various types of mail delivered (e.g. letters, flats, parcels, etc.), as well as the number of times a carrier performs various specified functions. Guidelines for completing Form 4239, e.g., whether to count or credit a particular piece of mail as a letter, a flat or a parcel, are set forth in Part of the PO-603, supra. At the conclusion of the rural mail count period, the data for each route is assembled, various formulae are applied and the route evaluation is determined. Calculations are made on the evaluated hours (in hours and minutes), utilizing standard allowances and actual time credits, to arrive at a weekly evaluation for each route. Each rural carrier's unique salary is thus calculated by applying to the individual route evaluation, as determined by the mail count, the graduated salary schedule set forth in the Table of Evaluated Hours for Rural Routes, a National Agreement provision negotiated by the parties. It is not at all uncommon for disputes to arise between the parties concerning the proper credit to be accorded a particular article or mail piece. Contested managerial determinations and interpretations in the mail count and route evaluation are subject to grievance challenge by affected rural carriers or the Association. If not resolved, such grievances may be appealed by the Association to Step 4 and ultimately to National Arbitration. Since all of the many items timed, counted, or

11 measured directly affect rural carrier compensation, neither party treats these matters as de minimus. For example, in this case, at the time the dispute arose, a flat was valued at 7 ½ seconds per piece and a parcel was 30 seconds per piece. The differences of opinion which eventually crystalized into Case No. E95R-4E-C first surfaced in mid-july 1998, during a labor-management conference of Count School in Spokane, Washington. The Parties memorialized their respective differing positions concerning flat or parcel credit for these particular mail pieces, but jointly agreed to disagree until after the September 1998 National Mail Count was completed. Thereafter, under date of November 5, 1998, Anthony M. LeBlanc, the NRLCA Steward at the Couer D Alene, Idaho Post Office, filed a Class Action grievance, alleging that the Postal Service had violated PO-603 by [giving] flat credit for magazines or flat envelope with a rigid article over 5" in magazine or flat envelope. After denial at Step 1, that grievance was appealed to Step 2 on November 16, 1998 and denied by letter dated December 15, 1998, as follows: A Step 2 meeting was held on December 4, 1998 between your Step 2 designee, Asst. State Steward Bob Bolich, and the undersigned regarding the above referenced grievance. Extensions were granted by mutual agreement. The issue is whether management violated the National Agreement by not counting as parcels flats that could be cased into carriers' cases when they contained rigid items. UNION CONTENTIONS: "This particular disagreement came up July 17, 1998 at Spokane District's Count School Trainers Training. In attendance at this meeting among us were, Idaho State Steward Curtis Buttars and Washington Assistance State Steward Marc McIntosh, and Spokane District CSA's John Scinto and Jim Crowe. Topic on rigid articles was discussed and disagreed on. Top officials Union and management were telephoned for a decision. The Union officials decision was the articles in question were parcels even if, packaged with a magazine or if in a large envelope. Management's top officials disagreed. Union and management agreed to disagree, until after the 1998 count September 17 th thru September 30 th. Then, the Union would have the option of filing a grievance. At the Step 2 meeting the Union stated the items in question were magazines in which were packaged 5 inch music or computer CDs. The Union argued that with growth Coeur d'alene case separations have become smaller as the carriers acquire more deliveries. This makes it difficult to case such rigid items. 11

12 REQUESTED REMEDY: Rural Carriers affected by this grievance be made whole and complete. Magazines containing CD's be counted as parcels on carriers' route evaluation. MANAGEMENT POSITION: The critical factor in determining whether or not magazines in which rigid items are packaged, is whether or not the mailpiece may be cased into an empty separation. This is supported by section b of the PO 603 which provides guidelines for Column B Papers, Magazines, Catalogs, Flats, Other Size Mail. It states management should enter in this column "newspapers, flats, magazines, catalogs, rolls, and other nonletter size mail that can be cased for delivery using carrier casing equipment." In the instant case, the items in question can easily be cased by the carriers even though a portion of the articles in question (the CD's packaged with magazines) is rigid. That the overall dimensions of the total mailpiece may exceed 5 inches in height or 18 inches in length is not persuasive. The rigid portion does not exceed the parcel criteria spelled out in c. By the Union's rationale, any piece of flat mail that exceeds either of those dimension may be counted as a parcel providing there is some rigid item within, regardless of size. By this theory, a coin (a rigid item) packaged with a magazine would be considered a parcel if the magazine's height exceeded 5 inches. The Union has not shown that the contract requires that a flat containing a rigid item should be counted as a parcel, even though it can easily be cased as a flat. Management's position is consistent with the parties apparent intent in finding that the determining factor in whether catalogs should be considered flats or parcels is whether or not they can be cased into an empty separation. This is in line with a November, 28, 1980 letter from William A. Stofl the Union presented, as well as a Step 4 agreement (H4R-4J-C 39300) that management presented. Regardless, as the PO-603 states "The carrier has the option of handling odd-size articles either with flat mail or separately, regardless of how it is credited. On December 23, 1998 Idaho State Steward Kurtis K. Buttars appealed the grievance to Step 12 3, where it was denied by letter dated January 19, 1999, as follows: After considering all available evidence in the joint grievance file and that offered by the union at the hearing on January 19, 1999, it is my decision to deny the grievance. This grievance concerns flat size mail which has a rigid computer disc inside of it. The mail item can be cased using carrier casing equipment. Moreover, local management contends that the rigid item within the flat does not exceed any of the dimensions making an item a parcel. In my judgment, the grievance does not involve any interpretive issue(s) pertaining to the National Agreement or any supplement thereto which may be of general application. Unless the union believes otherwise, the case may be appealed directly to area arbitration in accordance with the provisions of Article of the National Agreement. The Union next appealed the dispute, as a matter of national significance, to Step 4 where the discussions culminated in a Step 4 denial dated September 25, 2000, as follows: The issue in this grievance is whether Management violated the Methods Handbook PO-603, Rural Carrier Duties & Responsibilities during the September 1998 mail count. Specifically, did Management properly record flats and magazines that contain a rigid article exceeding 5 inches in height as a flat instead of a parcel?

13 The Union contends that a mail piece containing an object that would receive credit as a parcel if mailed by itself, should also receive parcel credit if sealed or contained in a mail piece that would otherwise receive flat credit. It is the position of the Postal Service that magazines and nonletter size mail containing a rigid article that exceeds 5 inches in height are recorded as flats in accordance with Part b of the PO-603. This provision states in part, "Enter in this column newspapers, flats, magazines, catalogs, rolls, and other nonletter size mail that can be cased for delivery using carrier casing equipment. This includes catalogs cased with other mail or cased separately." The mail pieces identified by the Union are flats and magazines, which contain a compact disc. Those flats and magazines can be cased for delivery using carrier casing equipment and therefore are properly recorded under Column B, as flats. The contents of a mail piece do not determine whether it is recorded as a letter, flat or parcel. For example, a twenty page memo folded in a letter size envelope is recorded as a letter. The same twenty-page memo unfolded in a flat size envelope is recorded as a flat. The NRLCA is attempting to change the language in Part c. of the PO-603 concerning Column C - Parcels to include partially rigid articles. The language currently defines a parcel as any rigid article that exceeds one of three specific dimensions. The articles referenced by the NRLCA are not rigid. The mail piece can bend. Subsection c.(2) of this provision states, "in addition, any nonrigid article that does not fit in the letter or flat separations (where flat separations are used) with other mail is considered a parcel." Because the piece of mail in question (regardless of its contents) is a nonrigid article and fits in the letter or flat separation, the mail piece is properly recorded as a flat. In the absence of any contractual violation, this grievance is denied. Time limits were extended by mutual consent. The dispute thus joined in grievance handling remained unresolved through all stages of the contractual appeal machinery, following which former NRLCA President Steven R. Smith certified it for National Arbitration. 13 POSITIONS OF THE PARTIES The following statements of position have been edited from the respective posthearing briefs and reply briefs. NRLCA The settlement of a Step 4 grievance pending National-level arbitration represents an agreement by the parties over the proper interpretation of the National Agreement or the published handbooks and manuals. Such agreements, by their very nature, have the force of contract and cannot be abrogated absent good faith collective bargaining. Significantly, nothing changed in the parcel definition found in the PO-603 between the time of the 1995 National Rural Mail Count, the February 1998 Sun City settlement, and the 1998 National Rural Mail Count at issue in this case. Accordingly, there is no reason why the instant case should be decided any differently than the parties themselves decided to resolve Sun City. For the Postal Service to admit that Sun City applies herein is to concede the whole case and so it is no surprise that the Postal Service refuses to make such an admission. Even so, the Postal Service is plain wrong because the Sun City settlement is directly on point. The principle agreed to by the parties in the Sun

14 City settlement has nothing to do with the percentage of overall rigidity. The Postal Service s dominate piece theory is simply a convenient attempt to sidestep and avoid the proper application of Sun City. As long as the rigid article exceeds the PO-603 threshold definitions for a parcel, it is a parcel. The only thing that counts is: Are any of the threshold requirements for parcel classification met? The answer in both cases is a resounding Yes! The mail piece in Coeur D'Alene was a parcel because it contained a rigid item exceeding one of the threshold characteristics of a parcel as defined in Section c.(1) of the PO-603. For all of the reasons stated above, the Association's grievance should be sustained and the mail pieces in question should be credited as parcels. As a National-interpretative case, the Association seeks make-whole relief for all affected carriers from the 1998 mail count to the present. The Postal Service cannot seriously argue that the additional effort required, if any, to count the exemplars in this case as parcels should outweigh or override the parties commitment to make a fair and accurate count and classification of all mail for purposes of arriving at a carrier s annual salary. Arguendo, if, the Arbitrator finds Sun City does not apply, there must nonetheless be a recognition that the rigid computer disk/magazine combination represents a new and different type of mail piece that did not exist when the operative language in the PO-603 was drafted. Arguably, the exemplar in question has characteristics of both a parcel and a flat; a hybrid farcel, if you will, that deserves separate and special treatment within the context of a rural mail count. The PO-603 offers no guidance to the parties or the Arbitrator on how to credit such a mail piece that has characteristics of both a parcel and a flat. Anytime an additional requirement is added to a rural carrier s duties and responsibilities or a new and different type of mail piece is introduced in commerce, there is a legal and contractual obligation on the Postal Service to refrain from unilateral action and to engage in good faith collective bargaining. Accordingly, only if the Arbitrator finds that Sun City does not control, he should retain jurisdiction and require that the parties immediately commence good faith negotiations to reach an agreement over a new time standard for the exemplar type in question. 14 USPS The language of Section c.(l) of PO-603 requires that the determination whether a mail piece is a parcel be made on the basis of the physical characteristics of the mail piece as a whole, not its contents. The plain meaning of the language demonstrates that the term article as it is used in Section c.(l) of the PO-603 describes the mail piece and not its contents. Thus, Section c.(l) states that, [a] parcel is any rigid article that exceeds any of the following dimensions: (a) 5 inches in height; (b) 18 inches in length; (c) 1-9/16 inches in width." Jt. Ex. 2 at 92. Under this definition, a parcel is itself literally the rigid article. Similarly, the dimensions referenced in the first definition refer to the mail piece - the article - and not to its contents. The parties' practice has consistently been to classify mail pieces as parcels, flats or letters based on the physical characteristics of the mail piece as a whole. The unrebutted testimony establishes that, as a matter of practice, mail pieces have been classified as letters, flats, and parcels in rural mail counts based on the external physical characteristics - the size, shape and rigidity - of the mail piece at the time it enters the mail stream. More specifically, in determining whether a mail piece is counted as a parcel under the rigid parcel definition, the testimony establishes that the practice has been to gauge, as an initial matter, the flexibility of the mail piece as a whole. The measure of whether a mail piece is a parcel is the physical characteristics of the mail piece - the rigidity as well as the dimensions of the mail piece - and not its contents. Thus, depending on the packaging, a mail piece that consists of an envelope that is only large enough to hold a rigid CD that exceeded 5" in height would likely satisfy the rigid parcel definition because the mail piece has taken on the physical characteristics of the CD: the mail piece is rigid and exceeds at least one of the dimensions listed in Section c.(1)(a)-(c). However, this would not necessarily be true of a larger mail piece, notwithstanding the fact that it contained the same CD described above. For example, the type of mail piece in dispute in this

15 case contains a large magazine as well as a CD. As Robert West testified, the physical characteristics of the mail piece as a whole are, at least for purposes of applying the rigid article definition, predominantly determined by those of the magazine. The Union's reliance on the Sun City pre-arbitration settlement is also misplaced. The grievance that led to that pre-arbitration settlement involved the issue of how to count a mail piece that satisfied the parcel definition, but was processed as DPS mail. In the pre-arbitration settlement, the Postal Service agreed that such a mail piece would be counted as a parcel, rather than as DPS mail. Ultimately, the question in this case is whether the mail piece at issue satisfies the parcel definition. The answer to that question depends upon how the rigidity and dimensional requirements are applied - either to the mail piece as a whole or to its contents. This was clearly not the issue resolved by the Sun City pre-arbitration agreement. Finally, the adoption of the Union's position, namely that a flat mail piece should be counted as a parcel if a part of its contents meet the requirements of Section c.(1), would complicate an already arduous and difficult process. Indeed, such a requirement would spawn a whole new generation of grievances: do we take into account the thickness of the packing material when measuring the dimensions of the insert? If so, how? If it can't be done, do we open the mail piece to take the measurement? It would be the height of irony if the rigid parcel definition, which was originally negotiated to reduce grievances, ended up generating a whole new set of disputes. 15 OPINION OF THE NATIONAL ARBITRATOR Turning to the issues and arguments properly joined in this matter prior to National Arbitration, the Union s primary argument is that an authoritative Step 4 pre-arbitration settlement in an earlier case dictates a sustaining decision in the present case. The present dispute has not previously been decided in arbitration, but the Union asserts that Case No. E95R-4E-C does not present a matter of first impression. According to NRLCA, this case is governed by the terms of a February 6, 1998 Step 4 settlement, supra of a 1995 grievance slated for National Arbitration in Case No. F91R-4F-C , Sun City, CA (hereinafter, Sun City ). The record before me includes a joint stipulation that, by mutual intent and past practice, these Parties accord Step 4 pre-arbitration settlement agreements of grievances presenting national interpretive disputes authoritative precedent value in subsequent cases presenting identity of facts,

16 circumstances and issues. In that connection, the following colloquy with respective Counsel at the 16 arbitration hearing is instructive (Transcript pages ): ARBITRATOR EISCHEN: Let me just interject with a question or two of my own. What is your policy or practice or tradition, if there is one, between these parties with respect to step four settlements? And is there a reference point in the agreement that I can MR. GAN: I don't believe there's a reference point in the agreement. The practice is that they are binding on the parties. They have the effect, almost, of contract language. They interpret the existing agreement, the handbooks, the manuals. And unless, for some reason, the parties want the settlement to not bind the parties, or to not permit the parties to use it in the future, that would be explicitly stated in the settlement. MR. SAPERSTEIN: I would agree with Union counsel's description, with, obviously, one caveat. That there may be disagreement over the application of the step four in terms of its precedential value between parties. That is to say, whether it applies as precedent in one situation as opposed to another situation in the future. Both Parties recognize that where a mutually binding prior decision or formal grievance settlement covers the same parties, issues, facts and contract language, a subsequent arbitrator might well consider the interpretation laid down in the earlier award or formal settlement agreements to be mutually binding, unless and until the parties change the language. Even though not required to hold prior awards and pre-arbitration settlement agreements binding in the judicial sense of stare decisis or res judicata, most arbitrators will give them serious and weighty consideration when called upon to interpret the same language. One eminent pioneer labor-management arbitrator stated the prevailing view as follows: Where a prior decision involves the interpretation of the identical contact provision, between the same company and union, every principle of common sense, policy and labor relations demands that it stand until the parties annul it by a newly worded contract provision. See Pan American Refining Corp., 2 ALAA 67,937, 69,464 (Whitley McCoy, 1948). Careful consideration of the record concerning these two disputes, however, leaves me persuaded that while the present case and Sun City exhibit superficial similarities they do not share the identity of issue which is critical to making the Sun City Step 4 pre-arbitration settlement

17 17 dispositive of the instant matter. Both grievances involved a piece of mail which the NRLCA maintains should have been counted during the Annual Mail Count as a parcel, but which the Postal service counted at lesser credit. In both grievances, the challenged mail piece in dispute consisted of an envelope or wrapper containing a hard case enclosing written matter and a readable or readable/writeable computer disc ( CD ). But the dimensions and characteristics of the mail pieces are markedly different in these two disputes. In Sun City, the disputed mail piece was a 6 by 9-3/8 envelope which contained non-rigid printed matter and a rigid plastic computer diskette measuring approximately 5-1/4 high. In Couer D Alene, the disputed mail piece was a labeled periodical wrapper or envelope containing both a non-rigid magazine approximately 10 inches high and 8 inches wide and a rigid CD or computer disc case 5 ½ inches in height. Because the Sun City mail piece had been processed on automated delivery point sequencing equipment (DPS), which handles mail up to 6-1/8 inches in width, the Postal Service management recorded and counted it in PO-603 Column L as a DPS letter. In the Sun City matter, however, it was never disputed that the challenged mail piece(s) in Sun City met the rigid article dimensional definition of a parcel under PO-603, Section c(1)(a). Indeed, it seems self-evident that a mail piece consisting of 6 inch high envelope containing a 5.25 inch high hard plastic case is, per se, a rigid article with the definitional dimensions of PO-603, Section c(1)(a). By contrast, the core issue presented in the Couer D Alene grievance now before me is whether the mail piece in question, a labeled periodical wrapper or envelope containing both a non-rigid magazine slightly larger than 10 high by 8"wide and a hard plastic CD case approximately 5" x 5.5", is such a rigid article.

18 18 There is no question that, standing alone, a rigid plastic CD case exceeding 5" in height must be classified as a parcel under Section c.(1)(a) of the PO-603. Nor is there any dispute that such a rigid article does not lose its parcel status when enclosed in a 6" x 9 3/8" envelope, irrespective of whether that mail piece is processed on automated delivery point sequencing equipment (DPS). Finally, I do not perceive any dispute between these Parties that an 8" x 10" magazine enclosed in a flexible plastic wrapping, standing alone, is appropriately classified as a flat under Section b of the PO-603. Reduced to its essence, therefore, the question presented in this National Arbitration case is whether proper classification of a mail piece under Section of the PO-603 is determined by the dimensions and rigidity of that mail piece, taken as a whole, or by the dimensions of a discreet rigid article contained inside that mail piece. The position of the NRLCA is that a mail piece must be counted as a parcel so long as any part of its contents is a rigid parcel meeting the dimensional definition in Section c.(1)(a) of the PO-603 Section c.(1)(a) of the PO-603. The Postal Service responds that a mail piece is classified as a parcel based on whether the mail piece, taken as a whole, is rigid and meets the dimensional requirements of the parcel definition. The charging party in a grievance over interpretation and application of a contract bears the burden of proving, by a preponderance of the record evidence, that the responding party violated the agreement in some fashion. Since the issue for determination is one of contract interpretation, the Union has the burden of proof. Certainteed Corp., 88 L.A. 995, 998 (Nicholas, Arb. 1987); Entex, Inc., 73 L.A. 330, 333 (Fox, Arb. 1979); Portec, Inc., 73 L.A. 56, 58 (Jason, Arb. 1979); City of Cincinnati, 69 L.A. 682, 685 (Bell, Arb. 1977). In my considered judgement, the Union has not met that burden of proof in this case. Neither the express language of PO-603 nor any parole indicator of mutual intent, inclusive of past practice,

19 19 bargaining history or authoritative precedent, persuasively support the Union s theory, a la Gertrude Stein, that a parcel is a parcel is a parcel. Rather, the record evidence is more supportive of the Postal Service s position that the Section guidelines have been applied in practice to the overall dimensions and rigidity or flexibility characteristics of a mail piece under examination, per se, rather than to any particular item enclosed within that mail piece. In short, the tail does not wag the dog. Sun City never reached or addressed the national interpretive issue presented in the present case and the language of PO-603, Section is not so clear and unambiguous on the disputed point as to foreclose the need for interpretation. In that connection, the underlying premise for application of the dimensional definitions in Section c.(1) is that the item under examination is a rigid article ; but that begs the question in this case. Section c.(2) and Section b, respectively, suggest that if the item is not a rigid article, per se, proper classification as a parcel or a flat could also turn on whether the mail piece under examination can be cased for delivery using carrier casing equipment and whether it will fit in the letter or flat separation (where flat separations are used) with other mail, without damage to the article. In the matter under consideration, the flexible magazine occupied proportionately a much larger percentage of the space in the mail piece than the hard CD case and the positioning of the CD case permitted the magazine to be folded. Thus, the mail piece was sufficiently non-rigid that it could be cased for delivery using carrier casing equipment and it fit in the letter or flat separation (where flat separations are used) with other mail, without damage to the article. Based on all of the foregoing, the issue presented, supra, must be answered in the negative.