NALC Arbitration Advocate - February 1998mseries.nalc.org/Adv1998_02.pdfAs Arbitrator Benjamin Aaron held in National Arbitration case number NC-E-11359 (Attach-ment #1, Page 3): It

A Publication of the Contract Administration Unit and Education Department - National Association of Letter Carriers, AFL-CIO

Fallacious “Canned” Argument from Management (New Arguments in Arbitration) 5Administrative Leave for “Acts of God”........ ..... ..... ..... .... ..... ..... ..... .... ..... ..... . 9Parking Past Practice is Prologue .... .......... ..... ..... ..... .... ..... ..... ..... .... ..... ..... 12Dollars for TE Violations - Failure to Give Union Information ... ..... ..... .... ..... ..... 13

�'9��4)7/'065�14�8+&'0%'Arguing For or Against Exclusion

Volume 2 Issue 1 February 1998

Inside...

0anagement: “I object, Mr. Ar-bitrator. The union is at-

tempting to introduce testimony tosupport a brand-new argument atthis arbitration hearing. This argu-ment has never before been madein the grievance procedure, and in-troducing it here is a violation of

the collective bargaining agreementand an abuse of this process.

“I might add that it is quicklybecoming standard operating pro-cedure for NALC advocates to in-troduce new arguments or facts forthe first time at arbitration, in an at-tempt to ambush employer repre-

sentatives. The union does this allthe time, asking an arbitrator tohear new arguments at the hearingwhen NALC knows well that thispractice is banned by controllingprecedent under the NationalAgreement. These union abuseshave grown so widespread that theemployer has been forced to re-spond with a written position paperon this topic, which I offer to you atthis time.

“I quote from the third para-graph of the paper:

As Arbitrator Benjamin Aaronheld in National Arbitration casenumber NC-E-11359 (Attach-ment #1, Page 3):

It is now well settled that theparties to an arbitration under aNational Agreement betweenthe Postal Service and a signa-tory Union are barred from introducing evidence or arguments not presented at preceding steps of the grievance procedure, and that this principle must be strictly observed (emphasis added).

(Continued on page 2)

A case originating in Idaho illus-trates how a carrier’s rights underthe Family and Medical Leave Act(FMLA) may provide powerful helpwhen a management disciplines acarrier for absences caused at leastpartly by medical problems. Theaward also shows how the unioncan make a powerful case by chal-lenging each separate violation ofthe just cause principle. C-16970, Re-gional Arbitrator Donald E. Olson,Jr., June 24, 1997.

The grievant in the case wasscheduled to report to work on Au-gust 17, 1994, but experienced cartrouble while out of town late the

previous night. She notified the PostOffice by phone between 2:00 and2:30 a.m. on August 17 and returnedto work the next day. Her supervi-sor requested documentation of theautomobile repairs. The grievant ex-plained that a friend had fixed thecar. The grievant received at thattime what she and her branch presi-dent believed to be an official dis-cussion regarding the absence fromher supervisor.

On October 27, 1994 the PostalService issued the grievant a seven-day suspension. The first charge


�$5'06''+5/�#0&�6*'��Just Cause Meets the Law at Arbitration

NALC Arbitration Advocate Page 2Volume 2, Issue 1 February 1998

The ruling of a national arbitrator isabsolute under the Postal Service’sarbitration system, Mr. Arbitrator.So I ask you to plant a flag in thiscase, Mr. Arbitrator, to stop theunion’s abusive attempt to violatethe agreement by introducing argu-ments and evidence for the firsttime at this hearing. ArbitratorAaron has spoken, and this unionmust be forced to play by therules.”

* * * * *

#..#%; +0 # �#0Management’s “position paper”

is real. The Postal Service’s arbitra-tion bureaucracy has developed aone-page “canned argument” thatadvocates can offer to try to ex-clude union evidence or argumentsthat USPS believes to be “new.” (Itis reproduced on page 5 below.)This tactic is one of several strate-gies used recently by managementadvocates in attempts to alter thebalance of persuasion at arbitration.

However, management’s posi-tion paper on this topic is so flawedas to border on plain dishonesty.The quotation has been cut off at akey point to misrepresent Arbitra-tor Aaron’s actual ruling. The re-mainder of the quotation gives atrue picture of its meaning:

... must be strictly observed.The reason for the rule is obvi-ous: neither party should haveto deal with evidence or argu-ment presented for the first timein an arbitration hearing, whichit has not previously consideredand for which it has had no timeto prepare rebuttal evidenceand argument. The spirit of the rule, however, should not be diminished by excessively technical construction .

C-04085, January 25, 1984, at pp. 3-4(emphasis added). So contrary to

the Postal Service’s “canned” asser-tions, in fact the Aaron decisionstands for the proposition that newarguments and evidence are not al-ways barred at arbitration. In theparticular circumstances of thecase, Aaron rejected NALC’s at-tempt to exclude a USPS defensemade for the first time at arbitra-tion, where hefound thatNALC had beenaware of the de-fense all along.

NALC ad-vocates shouldbe prepared tocounter manage-ment’s cannedmisrepresenta-tion with a fullreading ofAaron’s ruling.It may be helpful to point out that itis unethical to employ a partialquotation in an attempt to misleadthe arbitrator about controllingprecedent.

�6*'4 �� #%6+%5This particular canned argu-

ment is typical of many manage-ment advocates’ attempts to usesweeping claims to stop particulararguments, or entire cases, fromeven reaching the point at which anarbitrator can consider and decidethe matter. After all, if USPS can ex-clude union arguments, it need notrespond to the merits of those argu-ments. And if management cancome up with a an argument that acase is not arbitrable at all, it maybe able to avoid defending its ac-tions altogether. (For an in-depthdiscussion of management argu-ments that a dispute is not arbitra-ble, see “Challenges to Arbitrabil-ity: Clearing the ManagementRoadblocks,” in the August, 1997Advocate.)

Some NALC advocates have re-

ported that certain USPS districts,or particular management advo-cates, tend to employ these types of“exclusionary” tactics in nearly ev-ery case. The “canned argument”addressed here may be part of atrend in which management advo-cates use all kinds of hardball pro-cedural tactics in a desperate at-

tempt to re-duce theircaseloads.

Whateverargumentsmanagementthrows out inthe rough-and-tumbledebates of ar-bitration hear-ings, NALCadvocatesneed to be

ready with their own counter-arguments. The issues of when ar-guments must be raised to be pre-served for arbitration, and whattruly constitutes “new” evidence orarguments at the hearing, are wor-thy of some in-depth discussion.

�*' �'0'4#. �7.'As Arbitrator Aaron recog-

nized in the case that manage-ment’s canned argument mis-quotes, the general rule is that newarguments and evidence may notbe raised for the first time at arbi-tration. Aaron ruled in a differentcase that if the parties do not raisearguments or facts at Steps 2, 3 and4 of the grievance procedure theymay not raise such arguments or in-troduce such facts for the first timeat arbitration. C-03319, NationalArbitrator Aaron, April 12, 1983.National Arbitrator Mittenthalstated the identical rule with re-spect to new arguments in C-03206,September 21, 1981. Similarly, Na-tional Arbitrator Gamser ruled thatwhere an issue is not raised until


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trators that the facts and argu-ments they offer are not new, butrather part and parcel of mattersalready in the record.

As an example, say the unionoffers the grievant’s testimony thatshe had never been warned to stopthe behavior for which she wasdisciplined, or advised that contin-uing could lead to discipline. Man-agement objects, claiming that theunion has not previously made thisspecific factual allegation and thuscannot offer it for the first time inarbitration. The union might re-spond:

“The grievance alleged at ev-ery Step that the discipline was notfor just cause. One fundamentalcomponent of the just cause princi-ple is that management must giveemployees fair warning about therules and about the consequencesof violating them. This is well-settled, and both parties are wellaware of the various tests thatmake up the just cause standard.So management can hardly claim‘unfair surprise’ in this situation,and the particular facts of manage-ment’s errors are absolutely essen-tial to the union’s case in arbitra-tion. They should not be ex-cluded.”

Advocates should be ready toargue that whatever managementobjects to as “new” is actually notnew at all—that it is so closely re-lated to matters covered at earlierSteps that management has no ba-sis for a claim of “unfair surprise.”


Note on Case Citations

Please note that the C-number casescited in this publication are availableto interested advocates. All cases areavailable from the office of the Na-tional Business Agent and all but thenewest cases are available on theNALC Arbitration CD-ROMS.

ment of “unfair surprise” is miss-ing.

Another limit on the rule is thatit cannot be applied literally or me-chanically. Management has beenknown to object to union testimonyon the basis that the facts the wit-ness is offering have not been notedspecifically in the grievance file al-ready. However, in many situations

this objection isnonsensical be-cause there isno requirementthat every sin-gle fact, downto the smallestdetail, offeredat arbitration al-ready be docu-mented in thegrievance file.One of the pur-

poses of a hearing is to explore andfind the facts—something thatscholars call the “truth-seeking”function of arbitration. The rulebarring “new facts” does not permitmanagement to put the entire fac-tual inquiry of an arbitration hear-ing under a microscope, and insistthat each word spoken by a witnessbe identical to a written statementsubmitted previously.

Arbitrators should also under-stand that the arbitration process,unlike an expensive civil lawsuit,does not afford unlimited opportu-nities to question each witness atlength and under oath in deposi-tions prior to the actual hearing. Soone way or another some matters offact, as well as the full-blown de-tails of an argument, will never befully delivered until the hearing.

Arbitrators will use their expe-rience and judgment in decidingwhether a particular line of ques-tioning or other factual inquiry is“new,” or is related closely enoughto matters already in the case andthus admissible at the hearing. It isup to advocates to persuade arbi-

the filing of a party’s brief, the arbi-trator will not dispose of the issue.C-03002, November 3, 1976.

One reason for the rule banningthe late introduction of new evi-dence or argument, as Aaron ex-plained, is the avoidance of “unfairsurprise.” The other reason con-cerns the rationale and structure ofthe grievance procedure. TheNALC-USPSgrievance pro-cedure is de-signed to en-sure full dis-closure be-tween the par-ties, at eachStep of theprocedure, ofall issues andfacts necessaryto resolve thedispute. The notion is that early,full disclosure will assist the partiesin resolving disputes at the earliestpossible Step. If either party werefree to introduce brand new argu-ments or areas of factual inquiry atvery late stages, the goals of fulldisclosure and early settlementwould be undermined. Shop stew-ards and supervisors might welldecide to withhold until later,rather than discuss immediately,their most persuasive facts and ar-guments.

�+/+65 10 6*'

�'0'4#. �7.'The well-settled general rule

has some limits, however. First,there is Arbitrator Aaron’s admoni-tion: “The spirit of the rule, how-ever, should not be diminished byexcessively technical construction.”In other words, there may be situa-tions (like the one before him inthat case) in which a strict applica-tion of the rule may be inappropri-ate—for example, where the ele-

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time limits, whichever is later,such objection to the processingof the grievance is waived.

In practice, this language meansthat:

♦ If management asserts that agrievance is untimely filed atStep 1, it must raise the issue inthe written Step 2 decision(because Step 2 is “later” thanStep 1) or the objection iswaived. It is not sufficient to as-sert during the Step 1 meetingthat a grievance is untimely.

♦ If management asserts that agrievance is untimely at Step 2or a later step, it must raise theobjection in the written decisionat the step at which the timelimits were not met. For exam-ple, if management claims thatthe union’s appeal to Step 3was untimely, it must so statein its Step 3 decision or the ar-gument is waived.

Moreover, the union can de-molish a management untimelinessargument where USPS has raiseduntimeliness in its Step 2 decisionbut thereafter has failed to preservethe argument by restating it in theStep 3 decision. C-09093, NationalArbitrator Aaron, July 7, 1982. For aregional case following this rule seeC-08352, Regional ArbitratorWilliams, September 23, 1988.

In addition, regional arbitratorshave found that the employerwaived timeliness arguments when:(a) management orally claimed un-timeliness at the Step 2 meeting butdid not raise the issue in its writtenStep 2 decision, C-01300, RegionalArbitrator Levak, September 9,1982; and (b) when managementraised timeliness in its Step 2 deci-sion but failed to raise it orally atthe Step 2 meeting, C-03031, Re-gional Arbitrator Dworkin, Febru-ary 24, 1983. �

NALC advocates also can ar-gue that although absolute exclu-sion may be used often in courts oflaw, it is seldom appropriate in ar-bitration, which seeks to provide afair hearing through an informalsearch for the truth. Highly techni-cal rules of evidence, an NALC ad-vocate can argue, would underminethe fairness and truth-seeking func-tion of the arbitral process.

Finally, advocates facing claimsthat union arguments or evidenceare “new” may suggest that the ar-bitrator, as an alternative to exclu-sion, instead delay the hearing longenough to permit management toprepare a response. Experiencedadvocates report that most arbitra-tors facing a claim of “surprise”from either party tend to delay thehearing rather than exclude the ar-gument or evidence completely.

�*' �'56 �'('05'Union advocates can also use

the “new argument or evidence”rule offensively, to bar managementfrom raising new matters for thefirst time at arbitration. Say, for in-stance, that in an overtimegrievance management has insistedat each Step that Article 8, Section5.C.2.D. permits the employer toforce any carrier to work overtimeon his or her own route. Manage-ment insists on this argument andnone other until arbitration. Yet atthe hearing management’s first wit-ness begins to testify about“operational windows,” whichhave never been mentioned at ear-lier Steps.

NALC should object to the in-troduction of any facts or argu-ments concerning operational win-dows. At this point managementhas never before raised such a de-fense and may not make this argu-ment for the first time in arbitra-tion. Management’s pursuit of the

“operational window” issue consti-tutes an unfair surprise, placing theunion at a disadvantage in arbitra-tion and undermining the manda-tory disclosure provisions of thegrievance procedure. (Althoughthis union argument is sound, ad-vocates should expect that many ar-bitrators will delay the hearing togive the union time to prepare a re-sponse, rather than exclude man-agement’s new argument and evi-dence.)

�4$+64#$+.+6;

:%'26+10Arbitrability arguments consti-

tute an established exception to thegeneral rule prohibiting partiesfrom raising arguments for the firsttime at arbitration. The reason isthat arbitrability arguments havenothing to do with the merits of adispute—rather, they go to the fun-damental question of whether thearbitrator has authority to hear anddecide the dispute at all. (See“Challenges to Arbitrability: Clear-ing the Management Roadblocks,”in the August, 1997 Advocate.)

However, the fact that arbitra-bility may be raised for the first timeat arbitration does not necessarilymean that the argument will be suc-cessful. A good example of this con-cerns management claims that agrievance is not arbitrable becauseit was untimely filed or appealed.Advocates know that Article 15,Section 3.B provides that an un-timely grievance is waived andthus not arbitrable. Yet the samesection of the contract states thatmanagement can lose its right tomake an untimeliness argument:

However, if the Employer failsto raise the issue of timelinessat Step 2, or at the step atwhich the employee or Unionfailed to meet the prescribed


In th e M atte r of A rb i t ra tio nbe tw e e n

UN IT E D S T A T E S P O S T A L S E R V IC E

an d

GRIEVANT:______________________CASE#:______________________

LOCAL#:______________________BEFORE: Arbitrator______________

DATE OF HEARING:_________________LOCATION:_________________

ISSUE:___________________________________________________

OFFICE:_________________

OBJECTION TO NEW ARGUMENT

The Service strongly OBJECTS to the attempt by the Union to circumvent Article 15 of the CBA byattempting to put forth a new argument at hearing. For the union to offer a new argument at this, thefinal stage of the grievance/arbitration procedure, is untenable .

It is a matter of record in this appeal that at no step in the grievance procedure did the Union makethe argument (or submit documentary evidence in support of the argument) that it now attempts tomake in front of the Arbitrator. (See Joint Exhibit #2).

As Arbitrator Benjamin Aaron held in National Arbitration case number NC-E-11359 (Attachment #1,Page 3):

It is now well settled that the parties to an arbitration under a National Agreement betweenthe Postal Service and a signatory Union are barred from introducing evidence or arguments not presented at preceding steps of the grievance procedure, and that this principle must be strictly observed (emphasis added).

The Postal Service asserts that to allow the Union to enter these arguments into the record of thiscase at this, the last step of the grievance/arbitration procedure, would be improper as well as con-trary to the most fundamental, longest recognized elements of arbitration and collective bargaining.Further, the Postal Service respectfully requests the Arbitrator’s intervention in halting the discon-certing regularity of attempts such as this to abuse the process. It has become the rule, rather thanthe exception, that the Union takes liberties regarding its obligations of full disclosure, effectively“ambushing” management’s advocates at hearing and fully expecting arbitrator after arbitrator to al-low this blatant circumvention of the Collective Bargaining Agreement. These repeated attempts toenter new arguments into the hearing process have resulted in the Postal Service synopsizing itswell-founded objection to this practice in order to formulate this position paper for utilization by itsadvocates.

#..#%+175 \�#00'&[ �4)7/'06 (41/ �#0#)'/'06

NALC Advocates should be on the lookout forthis phony argument “canned” for management ad-vocates to fill in the blanks and submit. The quota-tion from National Arbitrator Aaron is incomplete;

two sentences later this caveat changes its meaningcompletely: “... The spirit of the rule, however,should not be diminished by excessively technicalconstruction.” C-04085, January 25, 1984.


was that she was AWOL on August17. A second charge alleged exces-sive unscheduled absences for anextended time period, including ab-sences covered by sick leave onMarch 30, May 12-13, June 22 andfour days in July. Management alsocited a previous Letter of Warningfor irregular attendance in Decem-ber, 1993 and a two-day suspensionfor irregular attendance on inFebruary, 1994.

The grievance went to a first ar-bitration in June, 1995 at whichNALC raised the issue that man-agement may have violated theFamily and Medical Leave Act aswell as the contract. The arbitratordecided, with the parties’ agree-ment, to remand the case back toStep 3 so that the parties could“fully develop and further addressthe issues in dispute.” The issues,including the FMLA question, werediscussed in an August, 1995 Step 3meeting and management onceagain denied the grievance. Thesecond Step 3 decision noted theunion’s FMLA argument by assert-ing that the FMLA was not arbitra-ble, and that even if it were foundarbitrable “the union has failed todemonstrate sufficient number ofthe dates of unscheduled absencesshould be excused under FMLA.”

At a second arbitration hearingmanagement defended the suspen-sion as appropriate, progressivediscipline. The management advo-cate also attacked the union’sFMLA claims, claiming that theyconstituted a new argument raisedfor the first time at the arbitrationhearing—an “ambush at arbitra-tion.” The Postal Service further ar-gued that even if the FMLA con-tentions could be considered, thegrievant had never given USPS suf-ficiently detailed notice that her

decision first disposed of manage-ment’s claim that NALC had raisedthe FMLA issue for the first time atarbitration. Noting that the partieshad discussed the FMLA matter af-ter the remand to Step 3 and thatmanagement had rejected theunion’s FMLA contentions in itsStep 3 decision, the arbitrator con-cluded that management’s claim ofunfair surprise “cannot be counte-nanced.” [Note: Management is en-couraging its advocates to arguethat a union’s “new arguments” atarbitration constitute “an ambush.”See the article and “canned” man-agement argument on pages 1-5above. —Ed.]

The arbitrator then ruled, refer-ring to Articles 3 and 5, that NALCcan “avail itself of the grievanceprocedure for alleged violations ofapplicable law,” including theFMLA. However, he said that“albeit the FMLA is arbitrable,” theFMLA did not need to be consid-ered in resolving the grievance be-fore him.

Arbitrator Olson then pro-ceeded to detail management’s vio-lations of just cause. Concerning thecharge of AWOL on August 17, hefound the grievant’s explanation ofher absence reasonable, as well asthe union’s testimony that the ab-sence was resolved through an offi-cial discussion. He also declaredthe suspension untimely, explain-ing, “As a rule, it is an essential as-pect of industrial due process thatdiscipline be administeredpromptly after the commission ofthe offense which prompted thediscipline.”

The arbitrator tied NALC’sFMLA contentions to the issue ofmanagement’s failure to investigatethe reasons for the grievant’s ab-sences over the preceding severalmonths. In light of the grievant’s


medical condition met the FMLAdefinition of a “serious health con-dition.” Management cited a stand-up given to employees about theirFMLA rights and the FMLA post-ings on bulletin boards.

NALC argued that manage-ment had committed multiple vio-lations of the just cause principle:(1) management had failed to provethe grievant was AWOL on August17; (2) management had failed to in-vestigate thoroughly the circum-stances of the grievant’s absencesfrom work before issuing the disci-pline; (3) given the official discus-sion concerning the August 17 ab-sence, the suspension constituted“double jeopardy”—a second pun-ishment for the same incident; (4)the discipline was untimely becauseit was issued on October 7, well af-ter the August 17 incident; (5) thegrievant was treated disparately,receiving discipline for less sick us-age than other employees who hadnot been disciplined.

The union advocate also arguedthat management had violated Arti-cles 3, 5 and 19 as well as the FMLAby disciplining the grievant for ab-sences caused by a chronic, serioushealth condition which includedtwo on-the-job ankle injuries and alimited duty assignment offeredand accepted in late February, 1994and later rescinded in April, 1994.Finally, NALC argued that manage-ment had acted contrary to its ownleave regulations—ELM Sections515 concerning the FMLA and 513requiring the notation of AWOL onForm 3971. NALC asked that thediscipline be rescinded and that thegrievant be made whole, be treatedproperly as a limited duty em-ployee and be afforded a positionshe could accomplish within hermedical restrictions.

Arbitrator Olson ruled forNALC, reversing the discipline. His

�$5'06''+5/ n �� T T T(continued from page 1)


prior injuries, limited duty assign-ment, and 4-day sick leave absencein July—for which managementhad the right to request medicaljustification—the arbitrator foundthe employer “was aware of theGrievant’s serious medical condi-tion, and her work limitations.”

In language that may be helpfulto union representatives in futuregrievances, Olson pointed out thatmanagement has certain legal obli-gations to an employee who mayhave a “serious health condition” asdefined by the Family and MedicalLeave Act:

Equally important, this Arbitratornotes the Employer’s own refer-ence material dealing with theFMLA, charges supervisors withthe responsibility for designatingwhether or not an absence isFMLA qualified and to give no-tice of the designation to em-ployees, if such employeeshave a serious health conditionsuch as the Grievant had.There is no doubt in the opinionof this Arbitrator that manage-ment knew of the Grievant’s se-

rious health condition, however,blatantly disregarded their re-sponsibility to notify theGrievant of her FMLA rights forqualified FMLA absences. Addi-tionally, there was no evidencein the record that the Employerafter being made aware of theGrievant’s medical condition, re-quired her to provide currentcertification from a health careprovider that the FMLA defini-tion was met. These require-ments are mandated by theEmployer’s own regulations. ...

(The “Employer’s own regulations”cited by Arbitrator Olson includeM-01271, “Family and MedicalLeave Act (FMLA) Reference Mate-rial for U.S. Postal Service,” March,1995.* This internal USPS HumanResources material outlines the af-firmative obligations placed on su-pervisors by the FMLA.)

Arbitrator Olson found addi-tional due process violations con-cerning the completeness of man-agement’s investigation and consid-eration prior to issuing the suspen-sion. Management had violated Ar-ticle 16.8's review and concur re-

,n a recent settlement of a Step 4grievance, the Postal Service

agreed with NALC as follows:

In a disciplinary hearing involv-ing just cause, the union mayargue as an affirmative defensethat management’s actionswere inconsistent with the Fam-ily and Medical Leave Act.

M-01270, October 16, 1997.* Thisagreement establishes a nationwiderule that all of the FMLA’s require-

ments may be raised as a defense ina disciplinary case. Prior to this set-tlement the Postal Service hadtaken the position that the unioncould raise only those FMLA de-fenses which arose from the limitedUSPS FMLA provisions found inSection 515 of the Employee andLabor Relations Manual (ELM).Now management has agreed towhat Arbitrator Olson sensibly helda few months prior to the settle-ment—that in raising an FMLA-

0(14%+0)�6*'��Grieving Violations of the Law

quirement because the Postmastertestified that he had no idea whythe grievant was absent on August17. And there had been no inves-tigative interview with the grievantprior to the October suspension no-tice.

Finally, the arbitrator ruled thatin light of sick leave usage compar-isons, management had disparatelytreated the grievant. The grievanthad used 88 hours of sick leaveduring the period in question,while other employees who hadused more—480 hours, 320 hoursand 160 hours—received no disci-pline.

Arbitrator Olson’s reasoning isparticularly helpful to NALC repre-sentatives seeking to reverse disci-pline that is based at least partly onleave covered by the Family andMedical Leave Act. The FMLAflatly prohibits an employer fromdisciplining an employee for leavewhich is covered by the law. TheFMLA regulations further obligatea management which has reason-able notice of an employee’s medi-cal or other FMLA-related prob-lems to investigate and determinewhether leave may be covered bythe FMLA, and to inform employ-ees when coverage is established.So an advocate may use manage-ment’s legal obligations under theFMLA as powerful tools to chal-lenge many instances of disciplinefor absenteeism.

For more information see side-bar, “Enforcing the FMLA: Griev-ing Violations of the Law,” on thispage. �

______________________________

*These materials recently wereadded to the NALC Materials ReferenceSystem. They are available in the officesof the National Business Agents but donot yet appear on the M.R.S. CD-ROM.


based affirmative defense in a disci-pline case, NALC may enforce anyand all of the Postal Service’s obli-gations under the FMLA.

�� #5

�((+4/#6+8' �'('05'An “affirmative defense” made

in a discipline case says, in effect,“Even if management has provenall the facts and basic elements ofjust cause in this case, the union hasan entirely separate defense which,if the union meets its burden ofproving it by a preponderance ofthe evidence, invalidates the disci-pline.” Management retains theburden of proving all of the ele-ments of just cause, but when theunion raises an affirmative defenseit takes on the burden of provingthat defense alone.

“Disparate treatment” is a goodexample of an affirmative defense.In making a disparate treatmentdefense a union representative con-tends, “Even if management hasotherwise established that it hadjust cause for the discipline in ques-tion, this discipline must be re-versed solely because other em-ployees have committed the sameor similar offenses and have not re-ceived any discipline or the samelevel of discipline.” As to the soleissue of whether the grievant wasdisparately treated the union shoul-ders the burden of proof. That is,when the union raises a disparatetreatment defense it must standready to present persuasive facts tosupport the argument. The unioncannot, simply by raising the de-fense and nothing more, force man-agement to prove that the grievantwas not disparately treated.

When the union does raise anFMLA affirmative defense in, say, acase of discipline for absenteeism, itmust stand ready to prove twothings. First, the union must showthat the employee's time off was, infacts, covered by the FMLA. In atypical case of the employee’s own“serious health condition,” this willrequire medical evidence that theemployee’s condition met theFMLA definition, and that the ab-sences were due to the covered con-dition.

Second, in order to immunize agrievant’s absences from disciplinethe union should show that man-agement had reasonable notice thatthe employee might have had anFMLA-covered condition. Once theunion shows that management hadsuch notice, management’s affirma-tive obligations under the FMLAare triggered—the obligation togive the carrier USPS publication71, “Notice for Employees Request-ing Leave for Conditions Coveredby the Family and Medical LeaveAct,” which outlines FMLA rights,and the obligation to investigatefurther whether the employee'sleave was covered by the FMLA.(See M-01271 for more informa-tion.) If management failed to ful-fill these obligations it cannot disci-pline the employee for the FMLA-covered absences.

A further twist may occurwhere management has failed togive employees sufficient informa-tion concerning their FMLA rights.For instance, if management fails topost prominently in the grievant’sworkplace WH Publication 1420,the U.S. Department of Labor’s offi-cial FMLA poster (also known asUSPS Poster 43), then NALC canargue that management is responsi-ble for any failure of the grievant togive notice that leave might havebeen covered by the FMLA.

�6*'4 ��

0(14%'/'06Advocates should be aware

that the Step 4 settlement does notrestrict the enforcement of manage-ment’s FMLA requirements to dis-cipline cases and affirmative de-fenses. For instance, NALC can cer-tainly grieve when managementdenies leave which is guaranteedby the FMLA, and take the case toarbitration if necessary. To arguethis matter advocates may findhelpful a ruling by National Arbi-trator Bernstein in C-06858 (March11, 1987), that the language of Arti-cle 5 enables NALC to enforce lawswithin the grievance-arbitrationprocedure:

The only purpose the Articlecan serve is to incorporate allthe Service's “obligations underlaw” into the Agreement, so asto give the Service's legal obli-gations the additional status ofcontractual obligations as well.This incorporation has signifi-cance primarily in terms of en-forcement mechanism—it en-ables the signatory unions toutilize the contractual vehicle ofarbitration to enforce all of theService's legal obligations. ...

NALC has FMLA resources inthe office of each National BusinessAgent, including the NALC Guideto the Family and Medical LeaveAct, the full set of federal regula-tions spelling out the law’s require-ments, Title 29 of the Code of Fed-eral Regulations, Part 825 (29 C.F.R.Part 825)—as well as ELM Section515 and the internal USPS HumanResources references materials onFMLA, M-01271. In addition, theU.S. Department of Labor’s WorldWide Web site contains the law, theregulations and additional informa-tion about the FMLA at the URLbelow.http://www.dol.gov/dol/esa/fmla.htm �

�4+'8+0) 6*' �� .#9 T T T(continued from page 7)


2n December 12, 1995 a stormswept through the Northwest,

causing wind gusts of over 61 milesper hour in Portland. Thousands ofpeople in the area lost power andtelephone service and the governordeclared a state of emergency.

The Tigard Station post officelost power and telephone service.The window remained open until5:00 p.m. that day and many carri-ers worked their full tour. How-ever, several carriers tried to callthe station because they feared fortheir safety due to trees falling, fly-away mailboxes, severe winds andthe state of emergency announce-ment. The carriers delivered themail in spite of the storm and onlysome 500 pieces of mail were cur-tailed of 30,000 total.

The workroom floor at TigardStation was mostly dark with only afew lanterns and flashlights for illu-mination. Many of the carriers, whoreturned to the office between 1:30and 3:00 p.m., could not work attheir cases. Supervisors told somecarriers to go home and told othersto take annual leave or leave with-out pay. One carrier was given achoice—work or go home. No workcould be done so he went home.

NALC grieved when manage-ment did not pay the full-time car-riers their full eight-hour guaran-tees for December 12. The unionalso alleged that managementshould have granted the carriers,including part-time flexibles, paidadministrative leave due to an “Actof God,” as provided by Section 519of the Employee and Labor RelationsManual (ELM). Management con-tended that the carriers were given

lated the National Agreement. Sheordered the Postal Service to payadministrative leave to all the carri-ers who were directed to leaveprior to the end of their tours andto those carriers who could notwork or were not provided workdue to the power outage and storm.

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#6 \�%65 1( �1&[With the winter of ‘98 upon us,

a major Northeast ice storm justpast and El Niño looming, it is agood time to review the meaning of“Acts of God.”

Most arbitrators agree that allthree, separate criteria of ELM Sec-tion 519.211 must be met before arequest before administrative leaveis upheld (see, e.g., C-04883, Re-gional Arbitrator Harry Grossman,April 23, 1985; C-00074, RegionalArbitrator Gerald Cohen, January18, 1980; C-00235, Regional Arbitra-tor Gerald Cohen, July 26, 1982).

1. The “Act of God” must in-volve a community disaster. Actsof God usually involve violentstorms, especially snow storms.Generally, arbitrators rule that astorm must be more than merelyabove average in intensity—it mustcreate “disaster conditions” to jus-tify administrative leave. Some ar-bitrators have defined an “Act ofGod” justifying administrativeleave as:

A natural occurrence of extraor-dinary and unprecedented im-pact whose magnitude and de-structiveness could not have


an option to leave or to stay andwork, and that no carriers were di-rected to leave the work place. Thecase was heard by ArbitratorNancy Hutt.

Arbitrator Hutt ruled forNALC, finding that all the require-ments of ELM Section 519.211 weremet. C-17710, January 7, 1998. Thelanguage provides:

519.211. “Acts of God” involvecommunity disasters such asfire, flood, or storms. The disas-ter situation must be generalrather than personal in scope orimpact. It must prevent groupsof employees from working orreporting to work.

The arbitrator found that the stormwas a community disaster becauseit had affected the community atlarge and led the governor to de-clare a state of emergency. It wasgeneral, she found, because itcaused power and phone outages inmany areas including Tigard Sta-tion. And the loss of power andlack of back-up lighting prevented agroup of employees from continu-ing their work in the post office.

Arbitrator Hutt further foundthat some carriers were ordered toleave, and that although others hadbeen given a choice,

“... the decision to leave wasreasonable, justifiable, andsomewhat involuntary. ... It isnot difficult to conclude a groupof employees were impacted bythe storm and prevented fromworking.”

Under these circumstances, Arbi-trator Hutt ruled, management’sdenial of administrative leave vio-

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1983. Other arbitrators reject the 50percent rule. Some require that thegroup be “substantial.” E.g., C-01357, Regional Arbitrator ElliotGoldstein, August 2, 1982. In C-00447 the arbitrator rejected even a“significant number” test, reason-ing, “The manual only requiresthat groups of employees must beprevented from working.” Re-gional Arbitrator Robert Stutz,November 9, 1983. He granted ad-ministrative leave to the 14 percentof employees who were unable toreport due to a snowstorm.

The Postal Service’s method ofgrouping employees can affect thepercentages dramatically. In C-00448 management grouped em-ployees over a 24-hour period todemonstrate that more than 50 per-cent had reported to work. How-ever, the arbitrator rejected thisapproach and grouped employeesby tour of duty instead, becauseweather conditions had changedover the 24-hour period. RegionalArbitrator Herbert L. Marx, Au-gust 26, 1983.

�156/#56'4�5

�+5%4'6+10ELM Section 519.213 spells out

two additional hurdles for carriersseeking administrative leave for anAct of God—the issue of manage-rial discretion and the requirementthat carriers exercise “reasonablediligence” in attempting to reportto duty.

519.213. Postmasters andother appropriate postal offi-cials determine whether ab-sences from duty allegedly dueto “Acts of God” were, in fact,due to such cause or whetherthe employee or employees in


scheduled to work. Where a stormprevented employees from a largearea from reporting to work, arbi-trators usually uphold administra-tive leave. E.g., C-09024, RegionalArbitrator Bernard Dobranski, De-cember 29, 1982. Maps may behelpful to demonstrate where em-ployees live and whether the stormprevented employees generally, oronly from specific areas, from re-porting to work. Where some em-

ployees in anarea have beenable to reportbut others havenot, arbitratorsoften find thatthe disaster waspersonal ratherthan general inscope. C-03489,Regional Arbi-trator RobertMcAllister, July7, 1983; C-04964, ibid.

Most arbitrators agree that thePost Office need not have sus-pended operations for a disaster tohave been “general” scope and im-pact. E.g., C-00402, Regional Arbi-trator Gerald Cohen, November 7,1980; C-00713, Regional ArbitratorBernard Dobranski, October 9,1981. But occasionally an arbitratorwill deny administrative leave be-cause the Post Office continued tooperate and mail was not curtailed.E.g., C-01176, Regional Arbitrator J.Fred Holly, June 21, 1982.

3. “Groups of employees” mustbe prevented from working or re-porting to work. Some arbitratorsrefuse to grant administrative leavefor an Act of God unless, as a ruleof thumb, half or more of the em-ployees at the particular stationwere unable to report to work. C-04205, ibid; C-03964, Regional Arbi-trator John Caraway, December 2,

been anticipated or providedagainst by the exercise of ordi-nary foresight.

E.g., C-04205, Regional ArbitratorGeorge Bowles, March 23, 1984.

“... bad conditions, poorweather, difficult conditions andthe like, are insufficient to consti-tute a disaster,” regional ArbitratorGerald Cohen ruled in C-09208(December 21, 1981). In C-03491 Re-gional Arbitra-tor GeorgeRoumell, Jr.denied admin-istrative leavebecause astorm did notblock mainroads andmany busi-nesses oper-ated normally(July 13, 1983).Other factorsarbitratorstypically consider include whethera state of emergency has beencalled, evidence of massive roadclosings, and whether state policeor local authorities had advisedpeople to stay home. See C-04964,Regional Arbitrator William Rent-fro, March 8, 1985; C-04205, ibid.; C-05432, Regional Arbitrator JohnMikrut, Jr., January 2, 1986. In C-00411 the arbitrator granted admin-istrative leave after a three-daysnowstorm in which the NationalGuard was called out to rescue peo-ple stranded in cars and otherstranded travelers were forced tosleep in schools. Regional Arbitra-tor Gerald Cohen, October 7, 1980.

2. The disaster must be “generalin scope and impact.” Whether adisaster is “general rather than per-sonal in scope and impact” usuallydepends on the amount and patternof absenteeism among employees

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He denied leave to employees whofailed to produce affidavits orother evidence of reasonable dili-gence. Regional ArbitratorNicholas Zumas, October 25, 1982.In C-03433 the arbitrator denied

the grievancewhere USPSdid not sus-pend opera-tions and theunion pre-sented no evi-dence of em-ployees’ dili-gence. RegionalArbitrator Ver-

non Jansen, April 14, 1982. In C-00411, ibid., Arbitrator Cohen ex-plained that a carrier must showthat alternate means of getting towork were unavailable or that theeffort would have been futile:

Proof of such effort will involvethe various means available tothe employee to get to workand the feasibility of thosemeans. Such means can be apersonal automobile, or variousspecialized automotive vehiclessuch as 4-wheel drive vehicles,snowmobiles, trucks and thelike. Were cabs and/or carpools available? Could the em-ployee have walked to work?

See also C-09024, ibid.

Finally, it should be noted thatin the Portland case described atthe start of this article, those carri-ers who were not ordered to leavethe Post Office nonetheless de-parted because no work could bedone. In other cases, arbitratorshave denied administrative leaveto employees who were given thechoice of performing work that wasavailable, or taking leave and go-ing home. �

trary in C-00680, where a employ-ees arriving late to work during asevere snowstorm were granted theleave but those who failed to reportwere denied it. The Postmaster tes-tified that he had followed thispractice sothat employ-ees wouldhave more in-centive tomake an effortto get to workin the future.The arbitratorheld that thiswas no validreason for denying the leave. Re-gional Arbitrator Nicholas Zumas,May 16, 1983.

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�+.+)'0%'[Some arbitrators will use evi-

dence of the general disaster condi-tions to make a finding that em-ployees exercised reasonable dili-gence. For example, in Regional Ar-bitrator Gerald Cohen reasoned,“Reasonable diligence must be de-termined on an overall basis of gen-eral conditions.” He found thatgiven the unusual strength of thestorm in question and news mediaadvice to stay off the streets, “ ...anyone on the street under thoseconditions would be more fool-hardy than reasonable.” C-00402,ibid.

However, some arbitrators willrequire specific proof that employ-ees exercised reasonable diligenceand still were unable to report towork. In C-00581, the arbitratorgranted administrative leave onlyto the two grievants who testifiedat the hearing although the stormhalted community activity andseverely affected the Postal Service.

question could, with reasonablediligence, have reported to duty.

Postmasters have discretionary au-thority under the ELM to grant ad-ministrative leave. As a general rulearbitrators hesitate to substitutetheir own judgment where the con-tract gives such discretion to man-agement. The exception is wherethe Postmaster’s judgment was“arbitrary or capricious,” a phrasethat is often taken to mean“contrary to reason” or “illogical.”The arbitrator in C-03205 explained,

“The only time an arbitratormight consider overturning thePostmaster’s decision in suchcases would be a situationwhere the requirements spelledout in the manual were met, andthe Postmaster’s decision ap-peared to be arbitrary or capri-cious.”

Regional Arbitrator Elvis Stephens,September 25, 1981. Although thisstatement expresses the standard ofreview which arbitrators often ap-ply to managerial exercises of dis-cretion, in practice the standard isopen to a wide range of interpreta-tion. In some decisions (such as therecent one from Arbitrator Hutt)arbitrators overturn management’srefusal to grant administrativeleave for an “Act of God” simplyon a showing that the ELM criteriawere met. A few, such as ArbitratorStephens, may hold that evenwhere the criteria are met, the deci-sion whether to grant the leave re-mains in management’s hands. Ar-bitrators do seem to agree, at least,that the Postmaster’s discretionaryauthority is not absolute—it mustbe guided by the ELM and may re-viewed by an arbitrator. See C-00359, Regional Arbitrator GeraldCohen, January 12, 1981.

A Postmaster’s denial of ad-ministrative leave was ruled arbi-

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consider the Postal Service’s Arti-cle 30 argument because the matterhad not been raised at any timeduring the processing of thegrievance:

Without doubt, Article 15 of theNational Agreement requiresboth parties to fully disclose allof the facts and argumentsthey rely upon, prior to arbitra-tion. ...

(For a detailed discussion of therule prohibiting the introduction ofnew evidence or arguments at arbi-tration, see the lead story on page1.)

The arbitrator also ruled thatthe employer’s program of paidcarrier parking at Riverside Stationhad become a contractually bind-ing past practice. Noting that Ar-ticle 20 required the “existing park-ing program” to remain in effect,he found that the paid parkingprogram constituted the “existingparking program.”

Olson reviewed the basic ele-ments of a binding past practiceand found all of them present inthe facts before him:

On the whole, in order for apractice to rise to the level of abinding “past practice”, it mustbe clear, consistently followed,followed over a reasonably longperiod of time, and to havebeen mutually accepted by theparties. ... The practice in thiscase was clear. There can beno question that since the mid-70s the Employer providedpaid parking for letter carriersat the Riverside Station. This


the National Agreement, Section 20of the LMOU and of the establishedpast practice concerning parking atthe Riverside Station. NALC ar-gued that Article 20, Section 1 man-dates that the existing parking pro-gram remain in effect for the termof the National Agreement. As tothe LMOU NALC argued that thelocal memorandum language wasvague and that the actual 20-yearpractice defined the LMOU’s intent.The union advocate further arguedthat a more than 20-year practicerose to the level of a binding pastpractice, and that management vio-lated Article 5 as well as Section8(d) of the National Labor RelationsAct by acting unilaterally to termi-nate the parking program.

The Postal Service argued thatit had not violated the NationalAgreement or the LMOU because ithad provided Riverside Station car-riers with parking solely based onavailability and budget, as requiredby the LMOU, rather than as a con-tractual “right.” It also argued thatalthough Article 30 provided anavenue for NALC to establish a“right” to parking, the union hadfailed to negotiate locally “[t]he as-signment of employee parkingspaces” as set forth by Item 19 ofArticle 30. NALC objected to thelatter argument because manage-ment raised it for the first time inthe arbitration hearing.

Arbitrator Olson ruled forNALC on all counts. Citing the“full disclosure” provisions in Arti-cle 15 and National Arbitrator Mit-tenthal’s decision banning new ar-guments in arbitration (C-03206,September 21, 1981) he refused to

$fter 20 years of providingSpokane, Washington letter

carriers with free parking at com-mercial lots, local management ter-minated the program in 1994,claiming it was under no contrac-tual obligation to continue. NALCgrieved, arguing that the parkingbenefit was a binding past practice.Regional Arbitrator Donald E. Ol-son, Jr. agreed, ordering the freeparking program reinstated and thepayment of $50 per month in dam-ages to affected carriers. C-17475,October 18, 1997.

Starting in the mid-1970's, localmanagement had issued parkingpasses to carriers at Spokane’sRiverside Station each month,which they used at nearby commer-cial parking lots. During 1981 localnegotiations the parties had agreedupon language stating, “Parkingspaces will be allotted to employeeswithin limitations of availabilityand budget.” The language hadbeen carried forward in each suc-cessive Local Memorandum of Un-derstanding.

Sometime before September,1994 the Postal Service establisheda new Spokane District with head-quarters located near the RiversideStation. Some district headquartersemployees did not receive freeparking, and the Postal Service de-cided it was not “fair” to continueto provide the Riverside Stationcarriers with free parking. Manage-ment terminated the carriers’ park-ing pass program in September,1994.

At arbitration NALC allegedviolations of Articles 5, 19 and 20 of

�#4-+0)��#56��4#%6+%'�+5��41.1)7'Arbitrator Reinstates Paid Parking Program


tract. —Ed.]

Arbitrator Olson ordered USPSto reinstate the paid parking pro-gram for carriers at Riverside Sta-tion, and to pay the affected carri-ers $50 for each month they weredenied the benefit.

NALC covered all of the basesin presenting this case to Arbitra-tor Olson. The union explained tothe arbitrator how the parking pro-gram met all the elements of a pastpractice, that the program wasconsistent with the LMOU, thatmanagement was obligated to con-tinue the “existing parking pro-gram” under Article 20 of the Na-tional Agreement, that manage-ment had violated both the con-tractual and legal prohibitions onunilateral changes in working con-ditions, and that management’sraising of an Article 30 argumentfor the first time at arbitration vio-lated binding national arbitrationprecedent. The case illustrates thepersuasive power of a very thor-ough, well-constructed set of argu-ments in arbitration. �

Section 8(d) of the National La-bor Relations Act which violatethe terms of this Agreement orare otherwise inconsistent withits obligations under law.

The arbitrator further held thatthe management’s unilateral actionhad violated Section 8(d) of the Na-tional Labor Relations Act. Section8(d) of the NLRA prohibits unilat-eral changes in wage, hours or con-ditions of employment, includingchanges in such terms of employ-ment which are covered by an ex-isting collective bargaining agree-ment. Since a binding past practicehas the same binding force as awritten provision of a collectivebargaining agreement, a unilateralchange in a past practice violatesNLRA Section 8(d) as well as Arti-cle 5's contractual prohibition onunilateral action. [Note: It is rela-tively unusual for an arbitrator tofind a violation of law when thesame result could be reachedthrough a ruling solely on the con-tractual issue. Arbitrator Olsonfound that management had vio-lated the law as well as the con-

benefit has been consistent andwithout objection. Moreover, theobvious mutuality and longstanding practice of the Em-ployer providing paid parking isconvincing evidence the partiesintended to deal with this benefitat the local level.

The award further noted therule that a past practice cannot bebinding if it conflicts with the lan-guage of the parties’ written collec-tive bargaining agreement. Arbitra-tor Olson found the practice wasnot at odds with the parties’ agree-ments because it constituted the“existing parking practice” as setforth by Article 20, Section 1, andwas included by implication in theLMOU’s Article 20 language.

Arbitrator Olson also ruled thatmanagement’s termination of theparking program violated Article5's prohibition on unilateral action,which states:

The Employer will not take anyactions affecting wages, hoursand other terms and conditionsof employment as defined in

�1..#45�(14��+1.#6+105Failure to Give Union Information

$rbitrator Louise Wolitz re-cently awarded overtime pay

to Venice, Florida carriers wholost overtime hours after manage-ment failed to give NALC infor-mation justifying the use transi-tional employees beyond Novem-ber 20, 1994. C-17192, July 5, 1997.

Under the Mittenthal transi-tional employee award and subse-quent NALC-USPS agreements,USPS is required to provideNALC with information justifyingthe hiring of transitional employ-ees. This includes a DPS impactanalysis—determined by applying

the Hempstead formula to currentroute data—which produces an es-timate of the hours expected to belost due to DPS implementation.USPS also must give NALC its cal-culations of the expected attritionrate and the “transition period.”After this analysis is completed anddelivered to NALC, managementmay hire transitional employeesonly after certain “triggeringevents” occur.

In addition, USPS was requiredto terminate all transitional employ-ees by November 20, 1994 exceptthose whom management had justi-

fied under these requirements.The Venice post office continuedto employ five carrier TE’s beyondthe November 20, 1994 deadlinealthough it had not providedNALC with the required informa-tion. NALC grieved the violation.

At the arbitration hearingNALC built its case thoroughly,providing and explaining all of therelevant contractual documentsincluding various Memorandumsof Understanding concerning TEhiring and utilization rules, thebooklet Building Our Future ByWorking Together and the Revised


Chapter 6 of that publication con-cerning TE’s. The advocate pointedout the strong language requiringlocal management to give NALC“all relevant information on whichthe DPS impact analyses are based,and to give the union reasonabletime to review the calculations anddiscuss them with local managers.”The union also offered the award ofRegional Arbitrator Devon Vrana inC-16500 (March 10, 1997)—anaward highlighted in the May, 1997Advocate—in which a series of simi-lar management failures to complywith TE-related information re-quirements led to a $25,000 awardin Amarillo, Texas.

Management’s defense in theVenice case was essentially one of

“harmless error.” The Postmastertold the arbitrator he had made aninformal impact analysis but didnot give it to the union because itwas not the official analysis fromthe District. The District’s analysiswas delivered several months afterthe November 20 deadline. ThePostal Service argued that the Post-master’s numbers turned out to beaccurate and that the justificationfor the TE’s was proper, eventhough it was delivered a bit late.

Arbitrator Wolitz ruled forNALC, finding that the contractualinformation sharing requirementswere mandatory. USPS was obli-gated to provide the informationeven if the union did not ask for itor file grievances demanding it. The

parties’ agreements also requiredthe local parties to cooperate andshare information, so the obligationwas on local management to pro-vide the information. The arbitratoralso rejected management’s argu-ment of “harmless error”:

Management argues that noharm was done. The arbitratordisagrees. First, harm was doneto the union’s contractual rightsunder the Memorandum of Un-derstanding by managementdisregarding its responsibilities.Unfortunately, it is difficult tofashion a remedy for this type ofviolation. Secondly, harm wasdone to any regular carrier whowould have worked the hoursworked by the TE's. Certainlyany carrier on the Overtime De-sired List who was not workingthe maximum number of hourswas harmed by not receivingthose hours. ...

Arbitrator Wolitz ordered manage-ment to pay every carrier on theOvertime Desired List who was notworking the maximum number ofovertime hours during the periodin question for those hours at theovertime or penalty overtime rate,whichever was applicable.

Like the Amarillo, Texas awardthat preceded it, the Venice awardillustrates the power of a contrac-tual case constructed step-by-step,walking the arbitrator through therelevant documents and explainingthe meaning of each one. Althoughcontract language can be difficult, acareful advocate can educate thearbitrator about the contract’s re-quirements and obtain an awardenforcing them. �

Copyright 1998National Association of Letter Carriers, AFL-CIO

100 Indiana Avenue, NW - Washington, DC 20001

�� &81%#6' �7/7.#6+8' 0&':

AdvocatesAdvocate’s Rights, Time Off to Prepare ..... ........ ....... ....... ........ ....... ....... ........ ....... ....... Nov 97

Arbitrator’s AuthorityChallenges to Arbitrability . ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... Aug 97Retention of Jurisdiction.... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... May 97

DisciplineAbsenteeism and the FMLA, Just Cause Meets the Law at Arbitration . ....... ........ ....... ....... Feb 98No Blanket Discipline Policies.... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... Nov 97

EvidenceExcluding Expired Discipline ...... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... May 97New Arguments or Evidence, Arguing For or Against Exclusion ... ....... ....... ........ ....... ....... Feb 98Parking Past Practice is Prologue, Arbitrator Reinstates Paid Parking Program..... ....... ....... Feb 98The Grievant as Management’s Witness .... ........ ....... ....... ........ ....... ....... ........ ....... ...... May 97

Hearing ProcedureIntroducing Documents ..... ........ ....... ....... ........ ....... ....... ........ ....... ....... ........ ...... ....... Aug 97Sequestration and Technical Assistants..... ........ ....... ....... ........ ....... ....... ........ ....... ....... Nov 97Tips on Technical Assistants ..... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... Nov 97Transcripts in Regional Hearings........ ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... May 97

Joint Statement on ViolenceArbitrators Enforce Joint Statement.... ....... ........ ....... ....... ........ ....... ....... ........ ...... ....... May 97Joint Statement Case Update .... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... Aug 97

LeaveAdministrative Leave for “Acts of God”....... ........ ....... ....... ........ ....... ....... ........ ...... ....... Feb 98

RemediesDollars for TE Violations, Failure to Give Union Information. ........ ....... ....... ........ ....... ....... Feb 98Making Management Pay, Arguing for Monetary Remedies. ........ ....... ....... ........ ....... ....... Nov 97Monetary Award for Improper TE Hiring ..... ........ ....... ....... ........ ....... ....... ........ ....... ....... May 97Monetary Remedies Without Proof of Loss. ........ ....... ....... ........ ....... ....... ........ ....... ....... Aug 97USPS Asks Money Damages .... ....... ....... ........ ....... ....... ........ ....... ....... ........ ....... ....... May 97

Six MemorandumsNo Exit from X-Route, Money for Ignored Joint Route Adjustments ...... ....... ........ ....... ....... Nov 97