The Postal Service violated the National Agreement by allowing bargaining unit members to unilaterally modify their lunch break hours as reflected in their bid assignments, according to a ruling by Arbitrator Pecklers. He ordered that the Service pay one hour of overtime to the union for each occurrence during the periods in question and indicated that the union shall distribute these sums to the bargaining unit as it deems appropriate.
This case occurred at the Lynbrook. New York postal facility. During numerous dates in the beginning of the year 2000, bargaining unit employees did not take their scheduled lunch hour but rather took the time off after more than six continuous hours. The union argued that the Postal Service allowed employees to unilaterally modify their own tour without notice to the union, and they are working over six hours without taking a lunch. It asserted that this practice has been allowed for over 15 years and numerous previous arbitrators have awarded remedies for this violation in the past. The union argued therefore that the doctrines of res judicata and stare decisis apply in this case. Moreover, it maintained that though the union has offered to change employees’ schedules, Form 3189s are not presented to them. To support its contentions that there was a violation, the union cited Articles 8, 15, 19, and 37 of the National Agreement.
The Postal Service countered that no employee has been harmed by the circumstances and it is operationally necessary for employees to be allowed to finish their customer service work before taking lunch. In addition, it maintained that the union has refused to sign-off on Form 3189s.
The arbitrator determined that the evidence showed that on the average lunch breaks were moved forward by one to three hours.
In addition, ELM Section 432.33 provides that “[e]xcept in emergency situations or where service conditions preclude compliance, no employee may be required to work more than 6 continuous hours without a meal or rest period of at least ½ hour.”
“This specific language trumps any residual rights embodied in Article 3’s general management rights language,” according to the arbitrator. He indicated that a prior arbitration settlement at this facility provided that no grievance would issue if a change in lunch break was five minutes or less which took into account “the Service’s ‘business necessity’ argument.” Also, the arbitrator found that there was no credible evidence to support the Postal Service’s assertion that the union refused to sign 3189s to allow a clerk to complete a transaction and then take lunch. He determined therefore that the Postal Service violated Article 19 and 37.3.F. (10) which indicates that an employee is entitled to work his/her bid hours. Also, Arbitrator Pecklers said that the Postal Service was barred from relitigating this issue in accordance with the collateral estoppel doctrine. Accordingly, the grievance was sustained.
(AIRS #36947 – USPS #A98C-4A-C 00145837 & 00153249; 2/912002)
Reprinted from the
April/May 2002 issue of CBR