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Volume 2 - Summer 1999
Page 8

Expansion of Street Time

A. Case Elements

    1. A reasonable standard of job performance on street. C#5353

    2. Grievant aware of standard and has failed to meet it. C#7603

    3. Management has provided remedial help and time to improve.

    4. Objective evidence of a failure to meet standards. C#5952

    5. Empirical evidence if employee has requested and qualified for a special inspection.

B. Definition of Issues

    1. Was a reasonable level of street time property established? C#5343

    2. Was the employee informed of the expectation?

    3. Remedial help or training? Warned of discipline?

    4. Was the employee allowed a sufficient amount of time to improve?

    5. What objective evidence exists to who unacceptable work?

C. Contractual/Handbook (other) Citations which should be made by Union
at or prior to Stop 2 are:

    1. Article 15

    2. Article 16

    3. Article 5

    4. Article 19 (M-39 Section 115); (M-39, Chapter, 2)

    5. Article 3

D. The arguments that should, at least, be considered, and if appropriate, articulated by the Union at or prior to Step 2 are:

    1. Technical defenses.

    2. Management's conclusions are based on arbitrary figures.

    3. No time wasting factors proven (specific).

    4. Special inspection was requested and not granted.

    5. No progressive discipline.

    6. Street standard can only be set thru M-39 242-321.

E. The documentation/evidence that should be jointly developed/reviewed to establish relevant evidence is:

    1. Written request for special inspection.

    2. Any empirical data existing to show management's case.

    3. 4584's

    4. Notes of supervisors or carrier.

    5. 3999 of last test.

    6. 1840 of last test.

    7. 1838C of last test.

F. Remedies

    1. Rescind/Purge discipline from the file.

    2. Make whole.

    3. Interest at Federal judgment rate.

Making A Mockery

If the student of this type of dispute reads nothing else on the subject, she/he should study the landmark Kostch grievance, out of LaMirada, CA, USPS and NALC, C#05343, Case No. WlN-5B-D 28620, Arbitrator Carlton J. Snow, October 7, 1985, where grievant was removed for just cause (this should have a sobering effect on any carrier who thinks management cannot remove a carrier for failure to perform, on the street, up to a reasonable standard properly arrived at) and the equally important Mock grievance, out of Lynnwood, WA, USPS and NALC, C#07603, Case No. W4N5R-D 44413 and W4N-5R-C 45036, Arbitrator Thomas F. Levak, November 30, 1987, where the employer made a mockery of the legitimate grounds for removing an employee for Unsatisfactory Work Performance/ Expansion of Street Time; and where, the employer made a mockery of the legitimate grounds for removing an employee for Unsatisfactory Work Performance/ Expansion of Street Time. (This should have a balancing effect on any carrier who thinks management can arbitrarily set the pace for street work and fire a carrier if the carrier doesn't meet the arbitrary standard.)

A. Case Elements

    1. A reasonable standard of job performance for street work - for grievant.

    2. Grievant - clearly informed regarding those standards.

    3. Grievant - clearly informed that their performance has failed to meet those standards.

    4. Grievant - clearly informed that their performance has failed to meet those standards.

    5. A showing that the employer gave grievant assistance in an effort to improve his/her job performance.

    6. Grievant - clearly warned of the consequences of failing to improve his/her job performance.

    7. After such warning, a showing that the employer gave grievant sufficient time to raise their individual level of performance to an acceptable level.

    8. Objective evidence that, during the time when grievant's performance should have improved, his/her level of performance failed to reach an acceptable level. (See Here: USPS and NALC, C#05343, Case No. WlN-5B-D 28620, Arbitrator Carlton J. Snow, October 7, 1985, pages 12-14.)

B. Definition Of Issues (Specific to discipline for Unsatisfactory Work Performance/Expansion of Street Time type disputes)

    1. How is a "reasonable level of job performance for street work for an employee" legitimately established? (The initial burden of proof is on management to show, on the face of it, that this has been done.)

    Under the National Agreement and M-39, each carrier must be individually judged by the fair day's work that she/he accords the Service, and, specifically, route street standards are to be developed with reference to that specific carrier. (See Here: USPS and NALC, C#07803, Case No. W4N-5R-D 44413 and W4N-5R-C 45036, Arbitrator Thomas F. Levak, November 30, 1987, page 13.)

    There are only two legitimate ways to establish a specific route street standard for a specific carrier: M-39 242.321.a. and M-39 242.321-b. m242.31 for evaluation and adjustment purposes, the bass for determining the street time shall be either:

      a. The average street time for the 7 weeks random time-card analysis and the week following the week of count and inspection; or

      b. The average street time used during the week of count and inspection.

    The only legitimate ways to establish a specific route street standard for a specific carrier, both involve the carrier having had a formal count and inspection as per Chapter 2 of the M-39 Handbook.

    2. What constitutes the carrier being clearly informed of the "reasonable standards of job performance for his/her street work" and being clearly informed that his/her performance fails to meet those standards?

    A legitimate specific route-street-carrier performance standard, arrived at under color of M-39 242.321, is one sub-element of this issue.

    Objective evidence that the carrier's level of productivity has fallen below that standard is another sub-element of this issue.

    3. Note: The initial burden of proof is on the employer to show that the carrier had been clearly informed. There is a potential opening, here, for the defense advocate. In real shop-floor life, employer representatives . sometimes express subjective dissatisfaction with a carrier's street work performance in general or, in an off-handed way, on some particular day.

    Arguably, this does not rise to the level of clearly informing a carrier of his/her failure to meet a legitimate specific route-street-carrier performance standard.

    4. What constitutes the carrier being given assistance in an effort to improve his/her job performance?

    Remedial training in response to specific problems, objectively established, regarding a specific carrier's street work is assistance. (See Here: USPS and NALC, C#05343, Case No. WIN-519-D 28620, Arbitrator Carlton J. Snow, October 7, 1985, page 13.)

    Telling a carrier to "go faster or that his/her performance is, generally, "not acceptable," for that matter is not assistance.

    5. What constitutes the carrier being informed of the disciplinary consequences of failing to improve his/her job performance?

    The employer may well argue that discipline issued for Unsatisfactory Work Performance/ Expansion of Street Time, whether upheld or not, constitutes "informing' a carrier of the disciplinary consequences of failing to improve his/her job performance. (See Here: USPS and NALC, C#07603, Case No. W4N-5R-D 44413 and W4N-5R-C 45036, Arbitrator Thomas F. Levak, November 30, 1987, page 11.)

    The Union should argue that, not only should the carrier be clearly informed of possible disciplinary consequences before discipline is issued, and be given a chance to improve (see below), but also that the charge of Unsatisfactory Work Performance/ Expansion of Street Time is not one of those handful of charges that justify immediately proceeding to removal, but rather, that all the steps of progressive discipline should betaken.

    6. What constitutes a sufficient period of time for the carrier to raise their level of performance to an acceptable standard?

    The employer, likely, will argue for a short period of time.

    The Union, likely will argue for a long Period Of time. Note: one arbitrator specifically mentioned a year's time as plenty long. (See Here: USPS and NALC, C# 05343, Case No. W1 N-5B-D 28620, Arbitrator Carlton i. Snow, October 7, 1985, page 14.)

    7. What constitutes objective evidence that, during the time the carrier's performance should have improved, the carrier's level of productivity failed to reach an acceptable level?

    Specific dated street performance times need to be linked with objective measures of mail volume for those days and, all this is in the absence at Union rebuttal regarding special objective conditions/circumstances that served to expand those times.

    Note: Burden of proof shifts back and forth. The employer, initially, must show, with persuasive evidence, that mail volumes were substantially the same as they were when the legitimate street performance standards were established and that, nevertheless, street times were substantially expanded. (See Here: USPS and NALC, C#05343, Case No. WlN-5B-D 28620, Arbitrator Carlton J. Snow, October 7, 1985, page 10, where the employer was successful and, by way of contrast USPS and NALC, C#07603, Case No. W4N-5R-D 44413 and W4N-5R-C 45036, Arbitrator Thomas F. Levak, November 30, 1987, page 15, third point where the employer, most emphatically, was not.)

    The Union can/should argue that there were special circumstances that served to expand those times, but must also prove such contentions with persuasive evidence that, hopefully, winds up unrebutted. (See Here: USPS and NALC, C#07603, Case No. W4N-5R-D 44413 and W4N-5R-C 45038, Arbitrator Thomas F. Levak, November 30, 1987, page 15, third point again.)

C. Contractual/Handbook (other) Citation which should be made by Union at or prior to Stop 2 are:

    In general, for discipline cases:

    1. Article 16, Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10

    2. Article 15, Sections 1, 2, 3

    3. Article 5

    4. M-39, Chapter 1 "Administration of City Delivery Service Section 115 "Discipline" good Union defense advocates, generally have read and understood these city passages for the sake of how they interlock and for tie procedural restrictions they place on management's authority to issue discipline to craft. It is advisable to review these passages as one' experience and understanding increase.

Source: From the Burden of Proof: What it Takes to Win, National Association of Letter Carriers Region 10, 1998 Spring School, Brownsville Texas, February 14-16, 1998 - pages 167-173.

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